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Petitioner: Asif Saleem VS Respondent: Chairman BOG University of Lahore etc
Court Name: Lahore High Court Judge(s): Jawad Hassan Title: Asif Saleem vs Chairman BOG University of Lahore etc Case No.: W.P. No.28791 of 2019 Date of Judgment:2019-05-13 Reported As: 2020 [M] C L R 808, PLD 2019 Lahore 407, 2019 LHC 1620, PLD 2019 Lahore 407 Result: N/A
Judgment Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged the legality of impugned orders dated 14.04.2017, 19.04.2017 and 03.12.2018 passed by the Respondents. 1. BRIEF FACTS 2. Brief facts of the case are that the Petitioner was serving as Assistant Professor in the University of Lahore (the "University")/the Respondent No.2 and was also a student of Doctorate (Ph.D.) at the Institute of Molecular Biology and Bio Technology in the University . On the complaint of the Respondent No.7 (Mst. Warda Shakeel), an inquiry was initiated and the Petitioner was dismissed from service under the Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 and was also expelled from the University of Lahore as a student of Doctor of Philosophy in Biotechnology , Reg. No.DBT02131001, Institute of Molecular Biology and Biotechnology . 3. Feeling aggrieved thereby the Petitio ner filed W.P. No.31900/2017 which was disposed of vide order dated 14.06.2017 with the direction to the Petitioner to avail alternate remedy . In pursuance of which the Petitioner preferred an Appeal before the Respondent No.5-Ombudsperson who modified the order of the competent authority with certain modifications vide order dated 03.12.2018. Being dissatisfied from the same, the Petitioner filed another W.P. No.6040/19 which was disposed of on 01.02.2019 with the direction to the Petitioner to avail appropriate remedy . In pursuance of which the Petitioner preferred an Appeal before the Governor , Punjab who disposed of the same vide order dated 20.02.2019 being not maintainable before him. Hence, this petition. II. SUBMISSIONS OF THE PETITIONER 4. Learned counsel for the Petitioner inter alia submitted that the impugned orders are illegal and against the law and facts; that no opportunity of personal hearing has been afforded to the Petitioner , as such he has been condemned unheard; that the Act was not applicable to the case of the Petitioner; that the Petitioner was
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entangled on the basis of jealousy by the Respondent No.7 and others; that vide the impugned orders dated 14.04.2017 and 19.04.2017 the Petitioner has been subjected to double jeopardy . III. SUBMISSIONS OF THE RESPONDENTS 5. On the other hand learned Law Officer vehemently opposed the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition at limine stage by stating that after proper inquiry the Petitioner has been found guilty of sexual harassment as such has rightly been awarded major penalty; that the Petitioner is an Assistant Professor and the victim is his student and if such like acts/conducts are not curbed with iron hands the dignity and prestige of the female students would become toy at the hands of the teachers; that the act of sexual harassment is a great stigma on the relationship of teacher and a student; that the major punishment to the delinquents by the Departments in such like offences would create an atmosphere of safety of respect amongst the female students. 6. I have heard the arguments of both the sides and perused the record. IV. MOOT POINTS 7. Keeping in view the prayer of the Petitioner, arguments on his behalf as well as the available record, following moot points are here framed: I. Whether the Respondents were justified to impose penalty of removal from service against the Petitioner, under the Act. II. Whether the Respondents were justified to expel the Petitioner from Ph.D. programme of the University . III. Whether this petition can be dismissed in limine. V. NUB OF THE MATTER 8. The Petitioner was serving as Assistant Professor in the Respondent No.2's University and was also a student of Doctorate in Institute of Molecular Biology and Bio Technology in the University of Lahore. A complaint of sexual harassment was lodged against the Petitioner by the Respondent No.7 who is his student alleging therein that the Petitioner harassed her sexually by way of sending her vulgar text messages on Whatsapp while she was asking about subject cell and tissue culture; he forced her to visit his bachelor accommodation and cook food for him; she also alleged that being a G.R. when she was inquiring from him abou t the status of class result, he starting conversation relating to sex and showed his intention of having sex with her; that some other girls also faced sexual harassment by the Petitioner . An inquiry was initiated and the Petitioner was dismissed from service under the Protection Against Harassment of Women at the Workplace (Amend ment) Act, 2012 and was also expelled from the University of Laho re as a student of Doctor of Philosophy in Biotechnology , Reg. No.DBT02131001, Institute of Molecular Biology and Biotechnology. The Petitioner preferred an Appeal before the Respondent No.5-Ombudsperson who modified the order of the competent authority with certain modifications vide order dated 03.12.2018 and converted the penalty from "dismissal from service" to "removal from service". Moot Point-I Whether the respondents were justified to impose penalty of removal from service against the petitioner , under the act. 9. The work environment for women, in a male-dominated society like Pakistan, is often hostile and antagonistic hindering their contribution to their coun try's development as well as their right to employment. Various studies have found that social constraints and an aggressive work environment discourage women from seeking employment. Therefore, the Protection against Harassment of Women at Workplace Act, 2010 (as amended by the Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012) (the "Act") was passed in March 2010 to make provisions for the protection against harassment of women at the workplace. The objective of this act is to create a safe working environment for women, which is free from harassment, abuse and intimidation to facilitate their right to work with dignity . It will also enable higher productivity and a better quality of life at work. Under section 2(h) the term "harassment" is defined as "harassment means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating,
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hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply such a request or is made a condition for employment". 10. It is also our constitutional duty to protect women to ensure their full participati on in all spheres of national life. The relevant provisions of the Constitution, 1973 are reproduced hereunder for ready reference: - "25. Equality of citizens.-- (1) All citizens are equal before law and are entitled to equal protection of law . (2) There shall be no discrimination on the basis of sex. (3) Nothing in this article to prevent the state from making any special provisions for protection of women and children. 34. Full participation of women in national life. Steps shall be taken to ensure full partici pation of women in all sphere of national life. " 11. The above referred Articles of the Constitution alongwith Article 14 provides every citizen male or female the right of self-respect, dignity and prestige and the Constitution has also guaranteed that steps shall be taken to ensure full participation of women in all spheres of national life. Under the Act, the protection to the women from being exploited and harassed at work place has been provided. The preamble of the Act clearly states that it has been made for the protection against harassment of women at the workplace. It also reflects that the Constitution recognizes the fundamental right of citize ns to dignity of person. It is the right of every woman in Pakistan to be recognized and has equal protection of law. This Court in case titled Subay Khan v. Secretary , Labour Government of the Punjab (PLD 2019 Lahore 253) has held as under: "24. A Right is a power, privilege, faculty, or demand, inherent in one person and incident upon another. Rights can be moral or legal. Along with legal rights there exist moral rights as well, which in general have subjective support while legal rights have the objective support of the State. Legal right is an interest, which is recognized and protected by the rule of legal justice. Every right has interests but all interests cannot be rights. Statues made by the State doesn't really give rights but in contrary deprives citizens from certain rights because all citizens are born with rights, Governments through such statues control the behaviors of individuals by drawing perimeters around those rights citizens possess by birth. The law may provide mechanism for enforcement of right but the existence of the right does not depend upon the creation of such mechanism. The right exists prior to and independent of the mechanism of enforcement. It is quite obvious that unless a right is recognized by the State it would not have any validity or weight to be imposed upon others. Hence, this right has just been recognized by the Government and will be protected by the Government and the Judiciary ." 12. In view of the above, the protection of women from being harassed at the workplace is already enshrined under the Constitution and was given under the Act and protected by the Executive and Judiciary. Moreover, this Act is not confined only to the relationship of an employer and employee; but it extends to all acts of sexual harassment committed by employer or employee with any women (at the workplace) by misusing/exploiting his/her official position/capacity. As in the instant case, the Petitioner/teacher/employee used his official position to sexually exploit his female student. The intention of the legislature for enacting the Act to protect all employees from being harassed or exploited during employment which can be at the workplace or any environment as specified in their terms and conditions of the employment. Section 2 (f) clearly states that employee means a regular or contractual employee whether employed on daily, weekly, monthly or hourly basis, and includes an intern or an apprentice. The employer includes all persons who employees workers under contract or any manner. The workplace defines under Section 2 (n) which clearly states that any place of work which includes any situation that is linked to official work or official activity outside the office. This means that any worker whoever is employed in any manner or capacity with the employer is protected from being harassed. The definition of harassment is exhaustive which has already been discussed above which also linked within the condition of employment. Therefore, in the case in hand the Petitioner was the employee as well as the student of the University and in his employment as teacher he exploited and harassed the Respondent No.7 by sending vulgar messages on Whatsapp for illicit purpose. VI. JURISPRUDENCE ON SEXUAL HARASSMENT ACROSS THE WORLD
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13. It is a matter of fact that sexual harassment, and harassment on non-gender discriminatory grounds, pollute the working environment and can have a devastating effect on the health, confiden ce, morale and performance of those affected by it. Commonly, the anxiety and stress produced by sexual harassment and harassment may lead to those subjected to it taking time off work due to sickness and stress, being less efficient at work or leaving their job to seek work elsewhere. Under the jurisprudence developed in this matter, the employees often suffer the adverse consequences of the harassment itself and, in addition, the short and long term damage to their employment prospects if they are forced to forego promotion or to change jobs. Henceforth, the sexual harassment and harassment may also have a damaging impact on employees not themselves the object of unwanted behaviour but who is witness to it or has knowledge of the unwanted behaviour. Therefore, for deciding the instant petition, it would be advantageous to make a survey of case law of different jurisdictions dealing with the issue of harassment of women at workplace. 14. Sexual harassment of working-women was first conceived as a special type of wrong entitled to legal remedy in the United States, thirty years ago by Catharine MacKinnon in an article, Sexual Harassment of Working Women (New Haven: Yale University Press, 1979). She made a perceptive argument that sexual harassment constitutes sex discrimination under Title VII of the 1964 Civil Rights Act. Congress had enacted Section 703, Title VI of the Civil Rights Act, 1964 , to address the issue of sexual harassme nt at the workplace. This provided the basis for civil action, and was rapidly assimilated into the wider discourse of discrimination, in the US (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57). The US Supreme Court in Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17 , held that: "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." 15. The US Supreme Court in Joseph Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), (judgment delivered by Justice Scalia ) even held that behavior deemed offensive could cover same sex intimidation, ridicules, or other abusive conduct. While on the subject, it would be interesting to note that the general perspective, which the courts often adopt, in the United States is not the standard of a "reasonable man" but the standard of a "reasonable woman " (Ref. Ellison v. Brady , (1991) 9th Circuit, 924 F.2d, 872). The relevant paras of the judgment are reproduced hereunder for ease of reference: - "we believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts "should consider the victim's perspective and not stereotyped notions of acceptable behavior". Conduct that many men consider unobjectionable may offend many women. Men tend to view some forms of sexual harassment as "harmless social interactions to which only overly-sensitive women would object"; the characteristically male view depicts sexual harassment as comparatively harmless amusement. We realise that there is a broad range of viewpoints among women as a group but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive. One writer explains: "Their greater physical and social vulner ability to sexual coercion can make women wary of sexual encounters. Moreover , American women have been raised in a society where rape and sex-related violence have reached unprecedented levels, and a vast pornography industry creates continuou s images of sexual coercion, objectification and violence. Because of the inequality and coercion with which it is so frequently associated in the minds of women, the appearance of sexuality in an unexpected context or a setting of ostensible equality can be an anguishing experience." In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper -sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when
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she alleges conduct which a reasonable women would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Of course, where male employees allege that coworkers engage in conduct which creates a hostile environment, the appropriate victim's perspective would be that of a reasonable man. We note that the reasonable victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realise that their conduct creates a hostile working environment. To avoid liability under Title VII, employers may have to educate and sensitise their workforce to eliminate conduct which a reasonable victim would consider unlawful sexual harassment. If sexual comments or sexual advances are in fact welcomed by their sapient, they, of course, do not constitute sexual harassment. Title VII's prohibition of sex discrimination in employment does not require a totally desexualized work place. We cannot say a matter of law that Ellison's reaction was idiosyncratic or hypersensitive. We believe that a reasonable woman could have had a similar action. A reasonable woman could consider Gray's conduct, as alleged by Ellison, sufficiently severe and pervasive to alter a condition of employment and create an abusive working environment." [Emphasis Supplied] 16. Lord Denning while deciding an employment appeal in case "Western Excavation (EEC) Ltd v Darby" [[1978] IRLR 27] remarked "the persistent and unwanted amorous advances by an employer to a female member of staff would amount to a fundamental breach of the implied term of mutual trust and confidence." 17. Several other countries have drawn up laws against sexual harassment, oftentimes based on substantially different models of unwelcome and objectionable sexual behavior , the United Kingdom enacted the Sex Discrimination Act, 1975, and also framed the Sexual Discrimination and Employment Protection (Remedies) Regulations, 1993). 18. In 2016, the Experts at the International Labour Conference, through their extensive and wide range discussions, observed that the violence and harassment in the world of work is unacceptable and, indeed, incompatible with decent work and that it must be addressed. They, therefore, concluded as follow: - "the violence and harassment is a human right issue and affects workplace relations, worker engagement, health, productivity , quality of public and private services, and enterprise reputation. It affects labour market participation and, in particular , may prevent women from entering the labour market, especially in male-dominated sector and jobs, and remain therein. It may undermine democratic decision-making and the rule of law" 19. The Supreme Court of India in Vishaka's case (AIR 1997 SC 3011) laid down certain guidelines and norms for due observation at all workplace or other institutions and until a legislation is enacted for the purpose. The guidelines on norms prescribed in the said judgment are as under: "Having regard to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993.Taking Note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time. It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women: - 1. Duty of the Employer or other responsible persons in work places and other institutions It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. 2. Definition For this purpose, sexual harassment includes such unwelcome sexually determin ed behavior (whether directly or by implication) as: - (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually coloured remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
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Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary , or honorarium or voluntary , whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discrim inatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 3. Preventive Steps: All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: - (a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways. (b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender . (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. 4. Criminal Proceedings Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority . In particular , it should ensure that victims or witnesses are not victimised or discrim inated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer . 5. Disciplinary Action Where such conduct amounts to mis conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint Mechanism Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. 7. Complaints Committee The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department. 8. Workers' Initiative
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Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forum and it should be affirmatively discussed in Employer -Employee Meetings. 9. Awareness Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a…
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