Lahore High Court set aside Federal Ombudsman ruling related to workplace harassment.
لاہور ہائی کورٹ میں آئین پاکستان کے آرٹیکل 199 کے تحت دائر درخواست کے بارے میں وفاقی محتسب کی جانب سے کام کی جگہ پر ہراساں کرنے کے حکم کو چیلنج کیا گیا تھا۔ فیصلے کے اہم نکات کا خلاصہ یہ ہے:
1. **پس منظر**: درخواست گزار طارق شیخ نے لاہور یونیورسٹی آف مینجمنٹ سائنسز (LUMS) میں ناروا سلوک کے الزامات سے متعلق وفاقی محتسب کے حکم کو چیلنج کیا۔
2. **عدالتی مسئلہ**: بنیادی مسئلہ یہ تھا کہ کیا وفاقی محتسب کے پاس اس معاملے پر دائرہ اختیار ہے، یہ دیکھتے ہوئے کہ LUMS بنیادی طور پر پنجاب کی علاقائی حدود میں واقع ہے، نہ کہ ایک بین الصوبائی تنظیم۔
3. **قانونی دلائل**:
- درخواست گزار نے دلیل دی کہ وفاقی محتسب کے دائرہ اختیار کا فقدان ہے کیونکہ واقعات پنجاب کے اندر ہوئے اور اس میں صوبائی قانون سازی شامل ہے۔
- انہوں نے پچھلے فیصلوں کا حوالہ دیا جس پر زور دیا گیا کہ صوبائی قوانین (جیسے پنجاب ایکٹ آن ہراسمنٹ) لاگو ہوتے ہیں جب تک کہ یہ تنظیم صوبوں میں کام نہ کرے۔
4. **عدالت کا فیصلہ**:
- لاہور ہائی کورٹ نے فیصلہ دیا کہ LUMS، اگرچہ وفاقی قانون کے تحت قائم کیا گیا ہے، پنجاب کے اندر کام کرتا ہے اور اس لیے پنجاب ایکٹ کے مطابق صوبائی محتسب کے دائرہ اختیار میں آتا ہے۔
- عدالت نے وفاقی محتسب کے حکم کو قانونی اختیار کے بغیر قرار دیا اور اسے ایک طرف رکھ دیا، شکایت کنندہ کو مشورہ دیا کہ اگر وہ چاہے تو صوبائی محتسب سے رجوع کرے۔
5. **نتیجہ**: فیصلے نے یہ نتیجہ اخذ کیا کہ وفاقی محتسب کے پاس اس معاملے میں دائرہ اختیار نہیں ہے، اس بات کی اہمیت پر زور دیتے ہوئے کہ ادارہ بنیادی طور پر اس بات کا تعین کرنے میں کہاں کام کرتا ہے کہ محتسب کے پاس کون سا دائرہ اختیار ہے۔
یہ خلاصہ پاکستانی قانون کے تحت کام کی جگہ پر ہراساں کرنے کے کیسوں سے نمٹنے میں وفاقی اور صوبائی اداروں کے درمیان دائرہ اختیار کے تنازعہ پر توجہ مرکوز کرتے ہوئے فیصلے کے نچوڑ کو حاصل کرتا ہے۔
Lahore High Court regarding a petition filed under Article 199 of the Constitution of Pakistan, challenging an order by the Federal Ombudsman related to workplace harassment. Here's a summary of the key points from the judgment:
1. **Background**: The petitioner, Tariq Sheikh, challenged an order by the Federal Ombudsman regarding allegations of misogynistic behavior at Lahore University of Management Sciences (LUMS).
2. **Jurisdictional Issue**: The core issue was whether the Federal Ombudsman had jurisdiction over the matter, given that LUMS is primarily located within the territorial boundaries of Punjab, not a trans-provincial organization.
3. **Legal Arguments**:
- The petitioner argued that the Federal Ombudsman lacked jurisdiction because the incidents occurred within Punjab and involved provincial legislation.
- They cited previous judgments emphasizing that provincial enactments (like the Punjab Act on harassment) apply unless the organization operates across provinces.
4. **Court's Decision**:
- The Lahore High Court ruled that LUMS, although established under federal law, operates within Punjab and therefore falls under the jurisdiction of the Provincial Ombudsperson as per the Punjab Act.
- The court declared the Federal Ombudsman's order as without lawful authority and set it aside, suggesting the complainant approach the Provincial Ombudsperson if desired.
5. **Conclusion**: The judgment concluded that the Federal Ombudsman did not have jurisdiction in this case, emphasizing the importance of where the organization primarily operates in determining which Ombudsperson has jurisdiction.
This summary captures the essence of the judgment, focusing on the jurisdictional dispute between federal and provincial bodies in handling workplace harassment cases under Pakistani law.
tereo. H C J D A 38.
Judgment Sheet
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
W.P No.47872/2022
Tariq Sheikh
Vs.
Federal Ombudsman etc.
J U D G M E N T
Date of Hearing 20.05.2024
Petitioner by:
M/s Waleed Iqbal, Wasif Majeed and
Faisal Mehmood, Advocates
Respondent
No.1 by:
Mr. Mohsin Raza Bhatti, Assistant
Attorney General
Respondent
No.2 by:
Hafiz Rehman Aziz, Mr. Bakhtiar Hyder
Khan and Barrister Jannat Ali Kalyar,
Advocates
On Court’s Call: Ms. Shaharbano Raza, Team Leader,
Gender and Inclusion, LUMS.
Anwaar Hussain J. Through the present constitutional
petition, under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 (“the Constitution”), challenge has been laid to order
dated 18.07.2022, passed by respondent No.1/Federal Ombudsman for
protection against harassment of women at the workplace, Islamabad
(“the Federal Ombudsman”), on the complaint of respondent No.2
(“the respondent”).
2.
By way of factual background, it has been noted that on
23.01.2021, the respondent filed a complaint with the Human
Resource Grievance Committee (“HR Committee”) of the Lahore
University of Management Sciences (“LUMS”) against the petitioner,
alleging misogynistic behavior based on two sets of incidents that
allegedly took place on 01.01.2021 and 04.01.2021. The incidents
involved conversations between the petitioner and the respondent
relating to SOPs for Covid handling at LUMS, which conversations
W.P No.47872/2022
turned into a heated exchange on account of respondent’s rigid
position. The respondent alleged such behavior (of the petitioner) to
be misogynistic, whereas, the petitioner asserted that it was a mere
spontaneous heated conversation between the two colleagues. The HR
Committee recorded the statements of the parties and examined
various witnesses, and after a detailed inquiry gave its findings, vide
report dated 30.03.2021, whereby, inter alia, it reached the conclusion
that the allegation of misogynistic behaviour against the petitioner
was not proved. The respondent preferred appeal in accordance with
the LUMS’ Policy on the harassment; however, later on, she
withdrew/abandoned her appeal. Thereafter, the respondent filed a
complaint on the same cause of action with the LUMS’ Sexual
Harassment Committee (“the Harassment Committee”). The
Harassment Committee concluded its proceedings, vide its report
dated 03.06.2021, on the basis of the respondent’s unequivocal
admission before the Harassment Committee that her complaint did
not allege sexual harassment against the petitioner, therefore, the
Harassment Committee had no jurisdiction to hear the complaint. The
findings of the Harassment Committee were not further challenged
before any forum. The respondent after the findings given by the
aforesaid Committees filed a civil suit for recovery of damages before
the Civil Court at Lahore on the basis of the same cause of action. In
the meanwhile, the respondent filed yet another complaint with the
Federal Ombudsman in June 2022, under Protection against
Harassment of Women at the Workplace Act, 2010 (“the Federal
Act”), which is the subject matter of the present petition. The
respondent based the subject matter complaint on the basis of sexist
harassment (remarks) that has been brought within the ambit of the
term “harassment” through the 2022 Amendment Act1
that came into
force on 25.01.2022. The Federal Ombudsman issued notice to the
1
See “The Protection against Harassment of Women at the Workplace (Amendment) Act, 2022”
came into force on 25.01.2022 whereby sub-Clause (ii), Clause (h) of Section 2 has been inserted.
W.P No.47872/2022
petitioner who appeared and filed an application/objection petition
seeking dismissal of the complaint, inter alia, on the ground that the
Federal Ombudsman lacks jurisdiction to entertain the complaint. The
respondent submitted her reply to the aforesaid application/objection
petition. The Federal Ombudsman, vide impugned order dated
18.07.2022 dismissed the jurisdictional objections raised by the
petitioner, hence, this constitutional petition.
3.
Learned counsel for the petitioner submit that the present case
is a classic example of wrongful assumption of jurisdiction inasmuch
as the present petitioner and the respondent worked for LUMS, which
is not a trans-provincial organization, hence, the Federal Ombudsman
has no jurisdiction to entertain the matter, under the Federal Act. Add
that even the subject matter jurisdiction did not vest with the Federal
Ombudsman, inasmuch as the complaint pertains to ‘sexist
harassment (remarks)’ and not ‘sexual harassment’, and the former
form of harassment was not included in the definition of harassment
until 25.01.2022, whereas the alleged incidents of harassment took
place in January 2021 and the respondent availed remedy before the
Harassment Committee and the finding thereof was never challenged
and the same has attained finality. Further contend that even if the
matter has not attained finality, the jurisdiction vests with the
Provincial Ombudsperson, under the Protection against Harassment of
Women at the Workplace Act, 2010 (“the Punjab Act”). Placed
reliance on the judgment of the Supreme Court of Pakistan in the case
titled “Nadia Naz v. The President of Islamic Republic of Pakistan
and others”2, in support of their contentions.
4.
Conversely, learned counsel for the respondent alongwith
learned Law Officer have raised preliminary objection on the ground
that present petition is directed against an interlocutory order and
2
PLD 2021 SC 784
W.P No.47872/2022
therefore, not maintainable. They further contend that LUMS has
federal character since it is created by a Federal Statute and the
President of Pakistan is its Chancellor, therefore, the jurisdiction has
been rightly exercised. Add that the LUMS’ policy itself refers to the
Federal Act for the purpose of jurisdiction, therefore, the petitioner
cannot assert that it is the Provincial Ombudsperson who has the
jurisdiction under the Punjab Act.
5.
In rebuttal, learned counsel for the petitioner submit that the
policy of LUMS has been changed and the anomaly has been removed
and it is the Provincial Ombudsperson, under the Punjab Act, which
has the jurisdiction and not the Federal Ombudsman.
6.
Arguments heard. Record perused.
7.
The legal question before this Court is to determine whether the
fact that an organization-LUMS in the present case, has been
established under the federal charter will, ipso facto, render it
amenable to the jurisdiction of the Federal Ombudsman, under the
Federal Act?
8.
Before proceeding further, it will be appropriate to address the
preliminary objection raised by learned counsel for the respondent
regarding the maintainability of the present petition on the ground that
order impugned herein is interlocutory in nature. It is trite law that the
principle of non-interference, by this Court, in interlocutory orders of
the fora below is a matter of rule and refusal is an exception, however,
when the orders passed by the Courts below are based on erroneous
exercise of jurisdiction, this Court has supervisory jurisdiction to
correct the same.
9.
Adverting to the legal question involved, it will be
advantageous to browse the case law relating to the operational
contours of the two statues i.e., the Federal Act and the Punjab Act as
W.P No.47872/2022
the question whether the Federal Ombudsman, can assume
jurisdiction over the complaint in which the cause of action arose in
provincial territory-the Province of Punjab or whether, in such like
matters, the jurisdiction vests with the Provincial Ombudsperson,
under the Punjab Act, has already been subject matter of few leading
cases.
10. In case reported as “Salim Javed Baig and others v. Federal
Ombudsman and others”3
, this Court held that the jurisdiction in such
cases lies with the Provincial Ombudsperson as the subject of
harassment against women had been devolved onto the provincial
legislature, while considering that the subject matter of harassment
against women was covered under Item No.25 of the Concurrent
Legislative List, being Population, Planning and Social Welfare,
which stood abolished, through the Eighteenth Amendment, on
20.04.2010, and all areas provided for under the abolished Concurrent
Legislative List devolved on to the provinces and therefore,
jurisdiction vests with the Provincial Ombudsperson and Federal
Ombudsman can only exercise the jurisdiction to the extent of the
Federal Capital Territory. The judgment of this Court in Salim Javed
Baig case supra was relied upon by the Sindh High Court in case
reported as “SZABIST (Shaheed Zulfiqar Ali Bhutto Institute of
Science and Technology) through Authorized Representative vs
Federal Ombudsman/Ombudsperson through Registrar and 3
others”4
to hold that the act of the Federal Ombudsman to assume
jurisdiction in relation to a matter that fell within the domain of the
Provincial Ombudsperson for Protection against Harassment of
Women at workplace, at Karachi, was devoid of any legal
authority.
3
PLD 2016 Lahore 433
4
PLD 2018 Sindh 581
W.P No.47872/2022
The Islamabad High Court5
also followed the ratio decidendi laid
down in case of Salim Javed Baig supra. However, in case of “Imran
Maqbool, President, MCB Bank Limited Versus Federation of
Pakistan through Secretary Law, Justice and Human Rights Division,
Islamabad etc.”,6
a learned Division Bench of this Court held as
under:
“10…….. Therefore the subject of harassment at the
workplace being a crime under the PPC means that
Parliament and the Provinces both are competent to
make laws with respect to the crime, procedure or
evidence. Hence we find that the subject of protection
of women from harassment does not fall under
‘population, planning and welfare’ of the CLL, rather it
falls under the federal domain consequent to its
international obligations and to the extent that the
subject relates to criminal law.”
11. Learned Division Bench of this Court, in case of Imran
Maqbool supra, was not persuaded with the reasoning of case of
Salim Javed Baig supra, inter alia, for the reasons that the
harassment, in any form, is a behavioral issue that adversely affects
the work environment and State is obligated to extend protection to
the women in the light of its obligations under the International
Conventions7, as Pakistan has ratified these treaties, and the Federal
Act was promulgated pursuant to said obligations under the
international treaties and conventions, and the subject matter of
protection of the workplace for women falls under Item 3 read with
Item 32 of the Federal Legislative List of the Constitution, which
includes implementing international treaties and conventions.
12. It is worth mentioning that the learned Division Bench in case
of Imran Maqbool supra also did not overrule the Salim Javed Baig
supra, rather, merely disagreed with the underlying reasoning of
5 “Jubilee Life Insurance Company Limited Vs The Federal Government through Secretary Law, etc.”
[2021 PLC(CS)1563].
6
PLD 2019 Lahore 17
7
Universal Declaration of Human Rights; Convention on the Elimination of all forms of
Discrimination Against Women, the International Labour Organization Convention 100; and the
Convention for Equal Remuneration for Men and Women for Work and Convention 111
W.P No.47872/2022
Salim Javed Baig case supra to the extent of the latter stipulating the
subject having been devolved and the Federal Act being confined only
to the capital/federal territory. In addition, in case of Imran Maqbool
supra, it was also observed that the issue of trans-provincial
organization was not taken into consideration by the learned Single
Bench of this Court in case of Salim Javed Baig supra and while
relying upon the dicta laid down in case reported as “Messrs Sui
Southern Gas Company Ltd. and others v. Federation of Pakistan and
others”8
, the learned Division Bench held that the jurisdiction lies
with the Federal Ombudsman in cases where the work place falls
under the purview of a trans-provincial organization-an organization
that transcends the provincial boundaries and operate in more than one
province. Learned Division Bench concluded as under:
“12. ....Under the circumstances, we hold that if the
employer or organization and its workplace falls
strictly within the territorial boundaries of the
Provincial Ombudsman, then jurisdiction vests with the
Provincial Ombudsman and where the employer or
organization transcends provincial boundaries such as
in this case then jurisdiction vests with the Federal
Ombudsman. To clarify we add that for the reasons
stated herein we disagree with the findings in the Salim
Javed Case that the Federal Ombudsman jurisdiction is
limited to the federal capital area as the Federal
Ombudsman is competent to hear complaints related to
trans-provincial organizations, institutions, employers
and workplace.”
It is imperative to note that at the time case of Salim Javed Baig supra
was decided, the judgment in case of Sui Southern Gas Company
supra had not been rendered. Sui Southern Gas Company case
supra explicated that in respect of organizations and establishments
that transcend the provincial territorial boundaries, the Labour
Courts had no authority or jurisdiction to deal with the
respective disputes involving such organizations and their employees.
8
2018 SCMR 802
W.P No.47872/2022
The said principle enunciated in case of Sui Southern Gas Company
supra was stretched and applied, on analogical basis, to the
harassment laws by holding that the organizations traversing beyond
the provincial confines is subject to applicability of Federal Act and
not the provincial enactment(s). Moreover, the Imran Maqbool case,
supra, further explicated the harassment laws by considering the
nature of both the statutes as criminal, and held that both the Federal
and provincial legislature can legislate with regard to criminal law in
terms of Article 142(b) of the Constitution.
13. Having analyzed the jurisprudence developed so far on the
subject, I would proceed to determine the present controversy in the
light of the settled law that a provincial enactment is applicable within
the provincial territory whereas the applicability of the Federal Act
comes into play when the issue involves the Federal Territory and/or
such organizations which transcend the provincial boundaries. Insofar
as status of LUMS is concerned, argument of learned counsel for the
respondent that LUMS is a federal institution as the President of
Pakistan is its Chancellor and it is the Federal Ombudsman that has
the jurisdiction is misconceived. The Federal Government had no
direct financial and administrative control over LUMS. The Board of
Trustees who had to run the affairs of LUMS are not consisted of any
government officials or its nominees and the President of Pakistan is
only its ceremonial head.
14. Even otherwise, perusal of Section 2(l) of the Punjab Act
amply reveals that neither the applicability of the Punjab Act nor that
of the Federal Act has been curtailed on the ground that an
organization and/or establishment has been set up under the Federal
statute or vice versa. Rather, the Punjab Act is fully applicable to the
organization managed and established by the Federal Government.
Section 2(l) of the Punjab Act reads as under:
W.P No.47872/2022
“(l) “organization” means a Federal or Provincial
Government Ministry, Division or department, a
corporation or any autonomous or semiautonomous
body, Educational Institutes, Medical facilities
established or controlled by the Federal or Provincial
Government or District Government or registered civil
society associations or privately managed a
commercial or an industrial establishment or
institution, a company as defined in the Companies
Ordinance, 1984 (XLVII of 1984) and includes any
other registered private sector organization or
institution;”
(Emphasis supplied)
The definition of the term ‘organization’ under the Punjab Act is
unequivocal. Section 2(l) clearly envisages a Federal Division and/or
Department as also any institution, inter alia, educational, established
by the Federal Government to be an organization for the purpose of
the Punjab Act. LUMS is an educational institution, covered under the
definition of the term “organization”, under the Punjab Act. The fact
that an institution was established by the Federal Government and/or
has a federal character is not the litmus test to draw the conclusion
that only Federal Act is applicable in cases of harassment of women at
workplace. Similarly, ratio decidendi laid down in case of Imran
Maqbool supra is clear i.e., unless an organization transcends the
provincial boundaries, jurisdiction of the Provincial Ombudsperson
for protection of woman against harassment at workplace is not ousted
and no incident to trigger the assumption of jurisdiction by Federal
Ombudsman takes place. Having the said legal position in sight, in
present case, it is imperative to, inter alia, look at the character of the
organization, its territorial location. No doubt that LUMS was granted
the charter by the Federal Government, however, the charter reads as
under:
“3. Establishment and Incorporation of the
University:-
W.P No.47872/2022
(1)There shall be established at Lahore a University
to be called the Lahore University of Management
Sciences consisting of:-”
(Emphasis supplied)
It is amply clear that LUMS, under the basic law as well as its charter,
has been localized within the Province of Punjab (at Lahore). While
the respondent side has laid emphasis on the charter of LUMS-being
federal to contend that the Federal Act is applicable, they are
oblivious of the fact that the geographical jurisdiction of the
organization created under the charter is to be determined under the
same charter/law that establishes the said organization and
helps determine whether the organization falls within the territorial
jurisdiction of a particular judicial forum. Thus, reliance on case of
Imran Maqbool supra, for the purpose of assumption of jurisdiction,
by Federal Ombudsman is misconceived. This Court holds that for the
purpose of determining as to which of the two Ombudsmen (Federal
or Provincial) in relation to protection of the Women from harassment
at workplace has the jurisdiction in respect of harassment caused by or
to the employee of an organization, the charter alone could not be
made basis of such determination, more particularly, if the place of
business, operations and activities of the organization were ‘localized’
in a particular province and/or city. Suffice to observe that the
representative of LUMS was also heard who has submitted the copy
of LUMS Sexual Harassment Policy, 2021, which defines the term
Ombudsperson in the following manner:
“XIV. “Ombudsperson” means the office of the
Ombudsperson, Government of Punjab provided for by
the 2010 Act.”
It is amply clear that the LUMS, realizing its localized operations (at
Lahore, Punjab) amended its policy and reference has been made to
the Ombudsperson, Punjab. Thus, the argument of the respondent side
W.P No.47872/2022
that the organizational policy refers to Federal Act is devoid of merit.
Even otherwise, the organizational policy or any reference therein to
any specific Ombudsman could not have overridden the legislative
instrument and legal position.
15. In view of the preceding discussion, it is concluded that the
complaint filed by the respondent against the petitioner was not
maintainable before the Federal Ombudsman who had no jurisdiction
to entertain and hear the same. The jurisdiction lies with the
Provincial Ombudsperson, under the Punjab Act. The impugned order
dated 18.07.2022 alongwith all the prior orders assuming jurisdiction
in the matter are hereby declared to be without lawful authority and,
therefore, set aside. The complaint of the respondent shall be deemed
to have been returned to her, who may file the same before the
Provincial Ombudsperson, if so advised. Having opined that the
Federal Ombudsman had no jurisdiction to entertain the complaint of
the respondent, other grounds agitated by the petitioner on merits of
the case need not be gone into or commented upon lest it may
prejudice the case of either side, before the competent forum.
16. Allowed in above terms.
(ANWAAR HUSSAIN)
JUDGE
Approved for reporting
Judge
Announced in open court on 21.06.2024
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