Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SALIM JAVED BAIG and others VS Respondent: FEDERAL OMBUDSMAN and others
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title: SALIM JAVED BAIG and others vs FEDERAL OMBUDSMAN and others Case No.: Writ Petition No,33483 of 2015 Date of Judgment:2016-04-05 Reported As: PLD 2016 Lahore 433, 2016 LHC 1362, 2016 C.L.R. 1017 Result: Petition allowed
JUDGMENT
JUDGMENT SYED MANSOOR ALI SHAH, J.--Respondent No,2 filed a complaint against petitioners on 14.09.2015 under section 8 of the Protection Against Harassm ent of Women at the Workplace Act, 2010 ("Federal Act") before respondent No,1 i.e,, the Federal Ombudsman for Protection against Harassm ent of Women at Workplace, Islamabad ("Federal Ombudsman"). Petitioners (i.e,, accused in the complaint) objected to the assumption of jurisdiction by the Federal Ombudsman in entertaining the complaint through their application dated 12.10.2015. They, inter alia, contended that as the cause of action arose in Lahore, Punjab, the Provincial Ombudsperson for Punjab under Protection Against Harassm ent of Women at the Workplace Act, 2010 ("Provincial Act") has the jurisdiction to entertain such a complaint. Application of the petitioners was dismissed by respondent No,1 vide impugned order dated 16-10-2015. Simultaneously, petitioners had preferred writ petition (W.P.No,31289/2015) before this Court challenging the assumption of jurisdiction by respondent No,1. This petition was dismissed in limine vide order dated 19-10-2015 on the ground that the application of the petitioners was already pending before respondent No,1, hence, the writ petition was not maintainable in the light of the alternate remedy already availed. 2. The petitioners, through the titled petition, challenged the rejection of their application, on the question of jurisdiction, by the Federal Ombudsman vide impugned order dated 16-10-2015. During the pendency of the titled petition and in gross violation of the interim relief granted by this Court, respondent No,1 decided the complaint of respondent No,2 through Judgment dated 4-1-2016, holding the petitioners guilty and imposing penalty of Rs,100,000/- on each of the petitioners, with a direction to the President (sic) of Pakistan Bar Council to issue letters of censure to the petitioners. Arguments of the petitioners1 2
---
## Page 2
3. Learned counsel for the petitioners argued that the Federal Act draws its legislative competence from the Concurrent List (entry/item No, 25) which has since been omitted by the Constitution (Eighteenth Amendment) Act, 2010 (Act X of 2010) ("Amendment Act"), the entries/legislative areas in the Concurrent List stood devolved onto the Provinces. Under Article 270AA(6) of the Constitution, notwithstanding the omission of the Concurrent List, the laws in existence prior to the 18th amendment continue to be in force unless altered, repealed or amended by the competent legislature. In Punjab through The Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 (Act III 2013) the Federal Act was altered/amended into a Provincial Act. It is submitted that after the provincial enactment, under the constitutional scheme, the Federal Act does not remain in force and stands succeeded by the provincial enactment. In this. Background it is submitted that the complaint of respondent No,2 which states that the cause of action has arisen in Lahore and against the petitioners, who also reside in Lahore, the Federal Ombudsman has no jurisdiction to entertain the said complaint and therefore the proceedings, orders and the final Judgment passed by respondent No,1 are unconstitutional, unlawful and without jurisdiction. 4. He also argued that petitioners are lawyers working in an individual capacity, without there being any registered law firm, hence for this reason they do not fall within the definition of accused or the employer under section 2 (a) and (g) of the Federal Act. On the whole, learned counsel for the petitioners placed reliance on A.F Ferguson & Co. v. The Sindh Labour Court and another (PLD 1985 SC 429), Messrs Simma Fabrics Ltd, Gujranwala v. Authority under. The Payment of Wages Act and 3 others (1981 PLC 498), V. Sasidharan v. (M/s) Peter and Karunakar and others (1985 PSC 777), Dr. Shagufta Hussain and another v. Water and Power Development Authority through Chairman and 4 others (2004 CLC 293), State of Rajasthan v. Ganeshi Lal (AIR 2008 SC 690). 5. Learned Deputy Attorney General (DAG) on behalf of the Federation, the office of the Federal Ombudsman and in response to notice under Order XXVII-A, C.P.C., relied on Article 270-AA(6) of the Constitution to support the contention of the learned counsel for the petitioners, to the extent that federal law automatically morphs into provincial law after the constitutional declaration under the 18th amendment and goes on to argue that the Federal Act also continues to exist but within restricted territorial jurisdiction i.e,, within Islamabad Capital Territory and territories which do not form part of the Provinces. He concludes by submitting that respondent No,1 could not have entertained the complaint of respondent No,2 as the cause of action arose in Lahore, Punjab and therefore the matter fell exclusively within the domain of the Provincial Ombudsperson. 6. Learned Law Officers in response to notice under Order XXVII-A, C.P.C., representing the Provincial Government, submit that after 18th amendment, Federal Act, as well as, Provincial Act co-exist according to .Heir territorial and geographic jurisdictions. The Provincial Act enjoys jurisdiction in the Province of Punjab, while the Federal Act is limited to the Islamabad Capital Territory and other territories which do not form part of any Province. They eferred to section 7 of the Federal Act to submit that the Federal Act had recognized before the 18th amendment that Ombudsman be appointed by respective governments at the federal and provincial level. On merits they submit that in the instant case, advocates are registered under the Legal Practitioners and Bar Councils Act, 1973 therefore, they fall under the definition of an "organization" under section 2(1) of the Federal Act. 7. Learned counsel for respondent No,2 (complainant) submit that even after 18th amendment, the complainant has a choice to file a complaint either before the Federal Ombudsman or the Provincial Ombudsperson but failed to substantiate this point with any convincing material. They also submitted that lawyers fall within the definition of an organization as they are governed by Legal Practitioners and Bar Councils Act, 1973.
---
## Page 3
Opinion of the Court 8. I have considered the arguments addressed at the bar and have examined the law. The fundamental constitutional cum legal question that requires determination by this Court is the scope of Article 270AA (6) of the Constitution and the effect of the omission of the Concurrent List on .The nature and character of the existing federal law. In the present facts, the Court has to determine the extent of jurisdiction enjoyed by the Federal Ombudsman under the Federal Act. In other words, whether Federal Ombudsman. Under The Protection Against Harassm ent of Women at the Workplace Act, 2010 can assume jurisdiction over a complaint in which the cause of action arose in Punjab or whether, in such like matters, the jurisdiction vests with the Provincial Ombudsperson under The Punjab Protection Against Harassment of Women at the Workplace Act, 2012 (:Provincial Act") post 18th constitutional amendment. 9. The Federal Act was promulgated on 11.03.2010 with jurisdiction extending to the whole of Pakistan under section 1(2) of the Federal Act. Constitution (Eighteenth Amendment) Act, 2010 was introduced on 20.04.2010. The said amendment omitted the Concurrent List from the Fourth Schedule to the Constitution, thereby enlarging and expanding the legislative domain of the provincial legislature and more importantly reinvigorating the constitutional theme of federalism and provincial autonomy. The preamble to the Amendment Act echoes the promise to establish "a Federal. ..State wherein... The Provinces have equitable share in the Federation." Admittedly, the Federal Act drew its legislative competence from entry 25 i.e,, social welfare, of the erstwhile Concurrent List. Post 18th amendment, this area stands devolved onto the Provinces. Under Article 270AA(6) of the Constitution, the Federal Act remains in force (as a Provincial Act, as discussed later) irrespective of the omission of the Concurrent List until such time that the Federal Act is altered, repealed or amended by the Competent Authority (legislature). Any such alteration or amendment in A the law by the competent legislature does not affect its continuity and the law continues to be in force, albeit, as a provincial law, not because of the alteration or amendment but because of the constitutional declaration under the 18th amendment. It is only on repeal that the law comes to an end. 10. The Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 (Act III 2013) has amended and altered the Federal Act (interestingly retaining the same title). It is actually the constitutional declaration of devolution, the underlying constitutional theme of federalism and provincial autonomy under the 18th Amendment which has metamorphosed the Federal Act into a Provincial Act. Alteration and amendment by the competent provincial legislature is a legislative exercise to align the law according to the wishes of the provincial legislature and has no bearing on the character of the law which already stands transformed into provincial law by the constitutional declaration on the promulgation of the Amendment Act. 11. Considering it from another angle, if the federal law under Article 270AA (6) can only be subjected to alteration, amendment and repeal by the provincial legislature, it means that the Federal law has lost its federal character and stands transformed into a Provincial law. What if the appropriate legislature does not carry out any amendment or alteration in the federal law, it still automatically stands converted into provincial law and remains in force as such. This is also because with the omission of the Concurrent List, the federal legislature loses its legislative fiat and command over the areas in the Concurrent List to the provincial legislature and as a consequence the federal law is deprived of its federal character. It is important to underline, that with the legislative shift from federal to provincial, the executive authority under Article 97 also gets realigned and changes hands from federal executive to the provincial executive. 12. The Amendment Act, as well as, The Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 constitutionally trims the Federal Act and restricts its jurisdiction to territories. Of Pakistan that fall outside the Provinces in terms of Article 1(2) of the Constitution.3
---
## Page 4
The continuance of the Federal Act in federal areas finds support under Article 142(d) of the Constitution that provides that the Federal Legislature has the exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province. The territorial jurisdiction of the Federal Act under section 1(2) extends to the whole of Pakistan. This geographical extent has to be pruned according to the constitutional mandate under the 18th amendment. The best interpretational tool to apply is that of reading down. Reliance is placed on Messrs Chetrone Stores Ltd. Through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others (2012 PTD 1815) and Nadeem Asghar Nadeem and others v. Province of the Punjab and others (2015 CLC 1509). Therefore, in order to align the Federal Act with the constitutional scheme, section 1(2) of the Federal Act is read down thereby limiting the extent of the Federal Act to areas which do not form part of any province. Reliance is also placed on Syed Imran Ali Shah v. Government of Pakistan and 2 others (2013 PLC 143) 13. The complaint filed by respondent No,2 on 14-9-2015 is based on cause of action arising in Lahore, the alleged accused also reside in Lahore, therefore, the jurisdiction to entertain and hear the complaint of respondent No,2 is with the Provincial Ombudsperson under the Provincial Act and the Federal Ombudsman has no jurisdiction to entertain the said complaint. The impugned Judgment dated 04.01.2016 passed by the Federal Ombudsman along with all the prior orders assuming jurisdiction in the matter are hereby declared to be unconstitutional, illegal and without lawful authority and, therefore, set aside. The complaint shall be deemed to have been returned to respondent No,2, who may file the same before the Provincial Ombudsperson, if so advised. Considering that the Federal Ombudsman had no jurisdiction to entertain the complaint, other grounds agitated by the petitioners need not be gone into. Conduct of the Federal Ombudsman 14. The petitioners challenged Order dated 16-10-2015 passed by the Federal Ombudsman before this Court. On 3-11-2015 this Court stayed the proceedings before respondent No,1 in the following manner:- "Notice for the above date. Till the next date of hearing, proceedings before the Federal Ombudsman for Protection against Harassment of Women at the Workplace, Islamabad shall remain stayed." The petitioners moved an application before respondent No,1 on the basis of the above stay order, but respondent No,1 in total disregard of the interim relief granted by the constitutional Court proceeded in the matter and rejected the application of the petitioners vide order dated 06-11-2015 in the following manner:- "An application has been moved by opponents that with reference to complaint filed before this forum, they have filed a writ petition having No,33483/2015 before Lahore High Court and on 03-11- 2015 stay order has been granted therein. Neither copy of petition nor order passed there on has been annexed along with this application. Even otherwise on basis any stay order granted by any court, proceeding of case before this forum cannot be stayed as there is specific bar by virtue of section 18 of Federal Ombudsman Institutional Reform Act 2013 which very clearly says that no court or authority shall have jurisdiction to entertain any matter which falls within the jurisdiction of Ombudsman nor no court or authority shall assume jurisdiction in respect of any matter pending with or decided by Ombudsman. This, proviso gives an autonomous position to the Federal Ombudsman and purpose of this forum is a quick disposal of cases rather than to linger on and keep the matter pending on basis of stay order granted by any authority or court. In view of above this application for adjournment on basis of stay order cannot be entertain and is thereby rejected." 15. After procuring the copy of the interim order passed by this Court on 03.11.2015, the petitioners once again moved an application before respondent No,1 on 13.11.2015 to stay the proceedings but
---
## Page 5
the same was also rejected vide order dated 18-11-2015 in the following manner:- "On 13.11.2015 an application was moved by opponents representative Mian Muhammad Hussain Chotiya, Advocate Supreme Court with a request that in view of order passed by Lahore High Court on 03.11.2015 in Writ Petition No,33483/2015 further proceedings before this forum be stopped otherwise he has no option but to file contempt petition. Along with this application he has also filed copy of writ petition filed by him before Lahore High Court and the order passed thereon on 03.11.2015. The point raised in application under disposal as to the jurisdiction of this forum has time and again discussed and decided by this forum in this complaint, which were never challenged by opponent before Competent Authority i.e, President of Pakistan. However by virtue of legislation, office of Federal Ombudsman has an autonomous position which has further been strengthening by an Act of parliament and assented by President of Pakistan on 20.03.2013. The purpose of establishment of Federal Ombudsma n Office is to provide speedy and cheaper justice to aggrieved parties and it is with this object a specific provision of section 18 was made a part of Federal Ombudsman Institutional Reforms Act 2013 which specifically bars any court or authority to assume jurisdiction of matter pending before Federal Ombudsman or decided by this forum. The only authority which under the law is empowered to examine the decisions and orders passed by Ombudsman is the President of Pakistan by virtue of section 14 of Federal Ombudsman Institutional Reforms Act 2013 and section 9 of Protection Against Harassment of Women at Workplace Act, 2010. In view of above discussion, request made by opponents representative in application dated 13.11.2015 is hereby rejected. Adjourned to 01-12-2015 for final arguments and for disposal of rest of interlocutory application moved by opponents." 16. As the order of this Court was being blatantly flouted, petitioners filed contempt petition (Crl. Org. No,2797-W/2015) on 17.11.2015. The orders passed in the contempt petition are discussed here under. In the main petition it was submitted that the Federal Ombudsman is bent upon passing the final order in total disregard of the stay order granted by this Court. In this background the Court directed the Registrar of the Federal Ombudsman to appear before the Court with the original file of the complaint vide order dated 07.12.2015:- "In a connected Crl. Org. No,2797-W/2015 it has been alleged that order of this Court dated 03.11.2015 has not been complied and respondent No,1 is proceeding further and has passed orders dated 06.11.2015 and 18.11.2015 in Complaint No,1(204)/2015-FOS of 2015, which are in blatant violation of the order of this Court. Respondent No,1 has been summoned in person in the connected contempt petition wherein show-cause notice of contempt has also been issued. 2. It is submitted that respondent No,1 is bent upon passing the final order in the matter. In this view of the matter as earlier orders of this Court are being flouted, office is directed to summon the original file of the aforesaid complaint from the Registrar, Federal Ombudsman for Protection against Harassm ent of Women at the Workplace, Islamabad and place the same before the Court on the next date of hearing. The Registrar, Federal Ombudsman for Protection against Harassment of Women at the Workplace shall appear in person on the next date of hearing." ' Instead of producing the record, learned DAG submitted Letter dated 4.12.2015 issued by the Registrar of the Federal Ombudsman, wherein the Registrar has refused to accede to the direction of this Court. Finding the contents of the letter to be contemptuous, show cause notice of contempt was issued to the Registrar in the following manner vide order dated 16.12.2015:- "In the absence of any report from the office, it is not certain whether order dated 07.12.2015 has been communicated to the respondent Federal Ombudsman for Protection against Harassment of Women at the Workplace. 2. Mr. Nasar Ahmad, Deputy Attorney General for Pakistan has placed on the record letter dated 04.12.2015 issued by Consultant, who according to the learned Deputy Attorney General for Pakistan also holds the post of Registrar of the Federal Ombudsman Secretariat for Protection against
---
## Page 6
Harassm ent of Women at the Workplace 11-A Main'Agha Khan Road, F-6/3, Islamabad and the relevant extract of the said letter is reproduced hereunder:- "In this regard it is hereby mentioned that this Secretariat of Federal Ombudsman is an independent and autonomous body and cannot accede any request which is not in accordance with law. Judgments and orders of this Secretariat are only challengeable before President of Pakistan under Section-9 of Protection against Harassment of Women at Workplace Act, 2010 and under Section-14 of Federal Ombudsman Institutional Reform Act 2013 and not otherwise. Undersigned has been instructed by Federal Ombudsman to request to kindly quote relevant law under which High Court bench can ask for comment in any matter, so as to enable this Secretariat to ensure compliance under sub-Article 2 of Article 175 of Constitution of Islamic Republic of Pakistan, 1973. " 3. Reading of the above reveals that the language employed by the Consultant/Registrar of the Federal Ombudsman for Protection against Harassment of Women at the Workplace is contumacious and contemptuous, therefore, a show cause notice of contempt is issued to Lt. Col. (R) Khamis Khan Panni, Consultant/Registrar of the Federal Ombudsman Secretariat for Protection against Harassm ent of Women at the Workplace, 11-A Main Agha Khan Road,F-6/3, Islamabad under section 17 of Contempt of Court Ordinance, 2003. 4. Office will allot a fresh number to these contempt proceedings and put up a separate file along with this petition on the next date of hearing." ' Separate contempt proceedings were initiated against the Registrar under Crl. Org. No,3631/W/2015. During this period the final judgment dated 4.1.2016 was announced by the Federal Ombudsman and was suspended by this Court vide order date 11-1-2016 in the titled case. Contempt proceedings against the Federal Ombudsman and the Registrar. 17. As the Federal Ombudsman refused to comply with order of this Court dated 3-11-2015, the petitioners filed a contempt petition (Crl. Org. No,2797-W/2015) in parallel to these proceedings on 17.11.2015. On the first hearing, this Court vide order dated 17.11.2015 simply handed a copy of the contempt petition to the DAG to seek instructions from the respondent. On the next date, learned DAG had no instructions from respondent No, 1 and by this time, respondent No,1 had passed two orders dated 0.11.2015 and 18.11.2015 defying the interim relief granted by this Court on 03.11.2015 and had also failed to submit any reply to the titled petition inspite of repeated orders, therefore vide order dated 20.11.2015 respondent No,1 was directed to appear in person and once again was directed not to proceed further in the matter of the complaint filed by respondent No,2 till the next date of hearing. 18. On the next date of hearing respondent No,1 in spite of being informed by the learned DAG, did not appear before the Court. The following order was passed on 02.12.2015:- "Learned DAG submits that in spite of informing respondent No,1, she is not present before this Court today. I was minded to issue warrant of arrest of respondent No,1, however, 'exercising judicial restraint I grant one more opportunity for appearance of respondent No,1. 2. Learned DAG will ensure the presence of respondent No,1 before this Court on the next date of hearing. 3. Let a copy of this order be faxed to respondent No,1, as well as, Secretary, Ministry of Law, Justice and H.R., Government of Pakistan, Islamabad for compliance of this order. 4. To come up on 07.12.2015." 19. Respondent No,1 did not appear on the next date, hence bailable warrants were issued to procure her presence vide order dated 07.12.2015 in the following manner: - "In spite of orders dated 20.11.2015 and 02.12.2015 respondent No,1 has not tendered appearance before this Court. It is pointed out that order of this Court dated 03.11.2015 passed in W.P. No,33483/2015 has been blatantly flouted in writing by the said respondent by passing orders
---
## Page 7
dated 06.11.2015 and 18.11.2015 passed in Complaint No,1(204)/2015-FOS of 2015. The relevant portion of the orders are as follows:- "06.11.2015: Even otherwise on basis of any stay order granted by any court, proceeding of case before this forum cannot be stayed as there is specific bar by virtue of section 18 of Federal Ombudsman Institutional Reforms Act 2013 which very clearly says that no court or authority shall have jurisdiction to entertain any matter which falls within the jurisdiction of Ombudsman nor no court or authority shall assume jurisdiction in respect of any matter pending with or decided by Ombudsman. This proviso gives an autonomous position to the Federal Ombudsman and purpose of this forum is a quick disposal of cases rather than to linger on and keep the matter pending on basis of stay order granted by any authority or court. In view of above this application for adjournment on basis of stay order cannot be entertain and is thereby rejected." 18.11.2015: On 13.11.2015 an application was moved by opponents representative Mian Muhammad Hussain Chotiya, Advocate Supreme Court with a request that in view of order passed by Lahore High Court on 03.11.2015 in Writ Petition No,33483/2015 further proceedings before this forum be stopped otherwise he has no option but to file contempt petition. Along…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.