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Petitioner: Meera Shafi VS Respondent: Office of the Governor Punjab & others
Court Name: Lahore High Court Judge(s): Shahid Karim Title: Meera Shafi vs Office of the Governor Punjab & others Case No.: W.P No.227635 of 2018 Date of Judgment:2019-10-11 Reported As: PLD 2020 Lahore 54, 2019 LHC 3402 Result: petition dismissed
Judgment Shahid Karim, J:- This constitutional petition seeks the setting aside of the order dated 11.7.2018 passed by the Governor Punjab on a representation made by the petitioner herein in terms of Section 9 of The Punjab Protection Against Harassment of Women At The Workplace (Amendment) Act, 2012 (Act, 2012 ). A decision made by the Ombudsperson on 03.05.2018 was brought under challenge before the Governor Punjab and which was passed on a complaint filed by the petitioner alleging harassment at the workplace. Facts: 2. The facts may be stated shortly . As adumbrated, the petitioner filed a complaint before the Ombudsperson on 30.04.2018 under Section 8 of the Act, 2012. She alleged that the respondent No.3 committed harassment within the meaning of the term as defined by section 2(h) of the Act, 2012 and was thus liable to be proceeded against under the provisions of the said Act. The Ombudsperson disposed of the complaint by holding that: "Complaints of harassment at workplace are taken up for decision under the Protection Against Harassment at the Workplace Act, 2010. According to section 8 (1) any employee shall have the option to submit a complaint either to the Ombudsperson or to the Inquiry Committee of complainant' s organization. The complainant has attached a copy of an agreement between her and J.S Events and Production and according to its clause 6.11, the agreement contains an express provision that it shall not be deemed to create any partnership or employment relationship. "6.11 this Agreement shall not be deemed to create any partnership or employment relationship between the parties. So, the complainant has no locus standi to submit a complaint under the Protec tion Against Harassment at the Workplace Act, 2010, she not being an employee, as per the definition contained in section 2(f)." 3. A representation was filed before the Governor Punjab and the crux of the holding of the Governor is encapsulated in paragraph 7 which, for facility , is reproduced as under:
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"I have gone through record of case including the written submissions made by the parties. The Representationist signed an agreement with JS Events 07.12.2017, and this has been relied upon in support of her claim that the parties were amenable to the jurisdiction of Ombudsperson under the Act. The agreement was made for specific performance by the Represe ntationist at an event at Serena Hotel Islamabad on 22.12.2017. The agreement contained a work plan and other ancillary matters between parties. Clause 6.11 of the agreement stipulated: "This Agreement shall not be deemed to create any partnership or employment relationship between the parties". It is also pertinent to note that the Respondent was not a signatory to the said agreement, as said in his written reply . He has also stated that there is no other independent agreement between the parties available on record. As such, there is nothing to substantiate the status of Respondent either as employee, accused, employer , or owner of workplace under the Act. Moreover , the agreement including its exclusion clause 6.11, were agreed to and signed by the parties with free will, knowledge and consent, and it must be interpreted as discernable by the plain language of agreement. The case law relied upon by the Representationist on the nature of employment concerns with law relating to industrial relations and employee old age benefits. As such, the cited judgments of superior courts are clearly distinguishable and not attracted to facts of present case. It should be kept in view that proceedings under the Act are quasi-criminal in nature and standard of interpretation of a penal statute is different from that of a civil law. Consequently, the Ombudsperson has rightly declined to entertain the complaint filed before her by the Representationist." The petitioner has sought judicial review of these decisions by filing the instant constitutional petition. The Governing Law: 4. The Parliament enacted the Protection Against Harassment of Women At The Workplace Act, 2010 (Act, 2010 ) which was published in the gazette of Pakistan on March 11, 2010. The Province of Punjab brought about certain amendments in the Act by enacting the Punjab Protection Against Harassmen t of Women at the Workplace (Amendment) Act, 2012. These amendments merely tweaked the structure to make it a provincial law and do not have any substantial impact on the controversy which has been raised in this cons titutional petition. At the heart of the controversy is the Act, 2012 and whether it applies to the petitioner or not. In other words, is the petitioner competent to apply in terms of the Act, 2012 by setting in motion the proceedings before the Ombudsperson to inquire into a complaint regarding the harassment at the workplace. Some of the definitions which will come in play and will have to be considered for the resolution of the controversy are reproduced hereunder for facility: "(e) "Complainant" means a woman or man who has made a complaint to the Ombudsperson or to the Inquiry Committee on being aggrieved by an act of harassment; (f) "Employee" means a regular or contractual employee whether employed on daily, weekly, monthly or hourly basis, and includes an intern or an apprentice; (g) "Employer" in relation to an organization, means any person or body of persons whether incorporated or not, who or which employs workers in an organization under a contract of employment or in any other manner whosoever and includes- (i) an heir , successor or assign, as the case may be, of such person or , body as aforesaid; (ii) any person responsible for the direction, administration, management and control of the management; (iii) the authority , in relation to an organization or group of organizations run by or under the authority of the Government, the Federal Government or any other Provincial Government, appointed in this behalf or, where no such authority is appointed, the head of the organization or group of organizations; (iv) the office bearer , in relation to an organization run by or on behalf o f the local authority , appointed in this behalf, or where no officer is so appointed, the chief executive officer bearer of that authority; (v) the proprietor , in relation to any other organization, of such organization and every director , manager , secretary , agent or office bearer or person concerned with the management of the affairs thereof; (vi) a contractor or an organization of a contractor who or which undertakes to procure the labour or services of employees for use by another person or in another organization for any purpose whatsoever and for payment in any form and on any basis whatsoever; and
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(vii) office bearers of a Federal or a Provincial or local authority who belong to the managerial, secretarial or directional cadre or categories of supervisors or agents and those who have been notified for this purpose in the official Gazette; (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 (XL VII of 1984) and includes any other registered private sector organization or institution; (n) "Workplace " means the place of work or the premises where an organization or employer operates and includes building, factory , open area or a larger geographical area where the activities of the organization or of employer are carried out and including any situation that is linked to official work or official activity outside the office." 5. Section 8 enumerates the powers of the Ombudsperson to inquire into a complaint and provides that: "8. Ombudsperson to enquire into complaint.- (1) Any employee shall have the option to prefer a complaint either to the Ombudsperson] or the Inquiry Committee. (2) The Ombudsperson shall within 3 days of receiving a complaint issue a written show cause notice to the accused. The accused after the receipt of written notice, shall submit written defense to the Ombudsperson within five days and his failure to do so without reasonable cause the Ombudsperson may proceed ex-parte. Both the parties can represent themselves before the Ombudsperson. (3) The Ombudsperson] shall conduct an inquiry into the matter according to the rules made under this Act and conduct proceedings as the Ombudsperson deems proper. (4) For the purposes of an investigation under this Act, the Ombudsperson may require any office or member of an organization concerned to furnish any information or to produce any document which in the opinion of the Ombudsperson is relevant and helpful in the conduct of the investigation. (5) The Ombudsperson shall record his decision and inform both parties and the management of the concerned organization for implementation of the orders." 6. Section 10 delineates the powers of the Ombudsperson and for our purposes amongst others, conferred on the Ombudsperson the power to impose any minor or major penalties. Sub-section (2) of section 10 reads as under: "S. 10(2) Ombudsperson shall while making the decision on the complaint may impose any of the minor or major penalties specified in sub-section (4) of section 4. 7. The provisions of the Act, 2012 which will exercise a gravitational pull on the decision that follows will be adverted to and referred at the time of dealing with the arguments of the learned counsel for the parties. The Agreement of 7 December, 2017: 8. Clause 6.11 of the Agreement executed on 7.12.2017 (The Agreement ) was the basis on which the Ombudsperson rejected the complaint of the petitioner . This agreement is the pivot around which the controversy revolves and was executed between the petitioner and JS Events and Production ("JS Events ") on 7.12.2017. Significantly , the respondent No.3 is not a party to the said agreement. The petitioner , in terms of the Agreement agreed to perform at a major concert in Islamabad as an Artist, scheduled on 22 December , 2017. Thus the Agreement was a one-of f service provider agreement executed by the petitioner as an Artist and terminated as soon as the show ended. The Ombudsperson as well as the Governor culled out from the Agreement the conclusion that the petitioner by the execution of the Agreement did not enter into an employment contract with JS Events and thus was not covered by the definition of the term employee" given in the Act, 2012. In the opinion of the forums below a relationship of the nature envisaged by the Agreement did not confer the status of an employee on the petitioner and so she did not have a right to petition the Ombudsperson on that basis. At best the Agreement was for the provision of services and clause 6.11 was a sufficient reflection of the intention of the parties not to create an employment relationship. The learned counsel for the petitioner argued that notwithstanding clause 6.11, the petitioner is still entitled to apply under the Act, 2012 as she can very well claim to be included in the definitionth nd "
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of an employee since the provisions of the Act will be triggered in case an expansionist view is taken in order to fulfill and serve the purpose of law . 9. The various clauses of the Agreement which will shed some light on the relationship between the petitioner and JS Events and form its core are necessary to be brought forth. The relevant clauses are reproduced as under: "1.3 "The Event" shall mean the Event to take place on December , 2017 at the Serena Hotel. 1.3 "The Work Plan" shall mean the detail of the nature of the services of the Artist to be provided to JS under this Agreement, a copy of which is attached to and forms part of this agreement. 2. ENGAGEMENT OF THE Artist 2.1 JS agrees to engage the Artist for the purpose of providing services to JS for the Event as set out in the Work Plan. 2.2 In consideration of the Artist Fee and the Artist' s Expenses, the Artist agrees to provide his services to JS for the Even as set out in the Work Plan. 3.2 JS and Artist agree that any material arising from the services of the Artist as set out in the Work Plan shall only be used by JS for the Event. This material shall not be released on social media or broadcasted on any medium without giving a preview to the artist and without prior written consent of the Artist." 10. Attached with the Agreement was a work plan and which laid out the detail and nature of the services of the artist to be provided to JS Events under the Agreement. It will be noticed that throughout the Agreement the petitioner has been referred to as an artist and a fee was also agreed between the parties which was the artist' s fee. For all intents therefore the Agreement is for services to be provided by the petitioner as the artist and was to last for a show which was to take place at Islamabad and the Agreement has admittedly terminated on the performance in the show . The parties do not quarrel that this case does not relate to any obligation arising out of the Agreement and the petitioner does not allege a complaint either in respect of the owner of JS Events or any of its employees. The complaint has been filed in respect of certain alleged acts committed by the respondent No.3 who admittedly is not an employee of JS Events and was not an executant of the Agreement too. Thus not only that this petition engages the question whethe r the petitioner is an employee within the definition given in the Act, 2012 but also whether a complaint could competently be made in respect of a person who is neither an employee nor an employer . In a crux, though the harassment within the meaning of the term given in the Act, 2012 was committed allegedly in the workplace, will it be triable by the Ombudsperson under Section 8 of the Act if neither it is made by an employee of the organization nor is the accused in that complaint an employee of that organization. 11. The learned counsel for the petitioner invites this Court to expand the definition of employee and to include within that definition a person who renders services under an agreement of the nature which was executed between the petitioner and JS Events. Discussion and Conclusion : 12. As a prefatory, it has to be emphasized that this case concerns justiciability of the petitioner's complaint before the Ombudsperson and does not seek to return a finding on the merits of the complaint for that stage was not reached before the forums below. Much emphasis was laid by the learned counsel for the petitioner on the policy and purpose of the Act, 2010. It was asserted and I would tend to agree that the Act was promulgated to make provision for the protection of women from harassment at the workplace. There is no doubt that the enactment was the need of the hour and gave a sense of security and protection to the women who had no remedy at their disposal for acts which were committed against them at workplaces and which were in the nature of unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature. All of these acts constitute sexually demeaning attitudes, causing interference in their work performance besides creating intimidating, hostile and offensive work environment. The purpose of the Act has been encapsulated in the preamble of the Act as also in the Statement of Objects and Reasons which was put forth by the Ministry-in-Charge (Prime Minister) Islamic Republic of Pakistan in the following words: "The objective of this Act is to create a safe working environment for women, which is free of harassment, abuse and intimidation with a view toward fulfillment of their right to work with dignity . It will also enable higher productivity
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and a better quality of life at work. Harassment is one of the biggest hurdles faced by working women preventing many who want to work to get themselves and their families out of poverty . This Act will open the path for women to participate more fully in the development of this country at all levels. This Act builds on the principles of equal opportunity for men and women and their right to earn a livelihood without fear of discrimination as stipulated in the Constitution. This Act complies with the Government's commitment to high international labour standards and empowerment of women. It also adheres to the Human Rights Declaration, the United Nation's Convention for Elimination of all forms of Discrimination Against Women and ILO's convention 100 and 111 on workers' rights. It adheres to the principles of Islam and all other religions in our country which assure women's dignity . This Act requires all public and private organizations to adopt an internal Code of Conduct and a complain/appeals mechanism aimed at establishing a safe working environment, free of intimidation and abuse, for all working women. It shall also establish an Ombudsman at Federal and provincial levels. 13. As observed earlier , there is no cavil with the object of the Act which was designed to create a safe working environment for women which was free from harassment, abuse and intimidation. It was designed to be an enabler for better quality of life at work as undoubtedly harassment is one of the biggest hurdles faced by working women. Of equal importance was the purpose of creating opportunities both for men and women in the right to earn a livelihood without fear of discrimination. The learned counsel for the petitioner particularly emphasized the words "for all working women" used in the Statement of Objects and Reasons" to argue that the ensuing Act was meant to be applicable to all working women in a workplace and did not specify whether those women were the permanent or contractual employees of an organization or were rendering servi ces in a different capacity . This submission should receive a short shrift. The Statement of Objects and Reasons does not control the enactment which is finally passed by the legislature and this Court is only concerned with the law which has finally seen the light of the day and thus falls to be interpreted by this Court. 14. While doing so, this Court is cognizant of its primary duty to interpret the law and not to make new law, for Judges are interpreters and not law makers. From a cumulative reading of the Act, 2012 it is an ineluctable conclusion that the law applies to harassment at a workplace in respect of an employee of an organization who can, upon an application of harassment, bring a complaint before the Ombudsperson against that employer or any of the persons employed in that organization. The purpose of the law has been circumscribed in respect of harassment of women who are employees either regular or contractual in an organization and thus it cannot be argued that the purpose of law will be defeated if the petitioner were not to be included in the definition of the term "employee". The law does not speak to every woman but only to a woman employee who happens to be harassed at a workplace. Clearly, the Act, 2012 impacts a large number of women who have benefited out of it and so the purpose of the law has been served. On the basis of this argument, it would neither be appropriate nor expedient to continue to expand the periphery of the law so as to include within its fold persons who are not employees within the strict meaning of the term defined in the Act, 2012 and who have other remedies which can be pursued. 15. The threading of the provisions of the Act, 2010 will lend some actuality to the entire analysis. We will begin by section 8 which confers the power on the Ombudsperson to enquire into a complaint. An employee has an option to prefer a complaint either to the Ombudsperson or the Inquiry Committee. The Inquiry Committee is a Committee which each organization is obliged to constitute within 30 days of the enactment of the Act to enquire into complaints under the Act. The petitioner chose to file a complaint with the Ombudsperson and not to the Inquiry Committee for obvious reasons. For, the remit of the Inquiry Committee extends to holding an inquiry in respect of an accused and which has been defined in the Act to mean an employee or employer of an organization against whom the complaint has been made under the Act. Clearly, the accused in the instant case is the respondent No.3 who is neither an employee nor an employer of the organization and was thus not amenable to the jurisdiction of the Inquiry Committee. This is so because the respondent No.3 does not admit to be either an employee or employer of JS Events and no question, therefore, arises for an enquiry to be held against him. On the same analogy the enquiry by the Ombudsperson cannot be held against the respondent No.3, for an Ombudsperson is possessed of the same powers as that of an Inquiry Committee upon a complaint being
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preferred. By virtue of sub-section (2) of section 10, while making the decision on the complaint, the Ombudsperson may impose any of the minor or major penalties specified in sub-section (4) of section 4. It would be interesting to reproduce the penalties stipulated by sub-section (4) of section 4 which the Ombudsperson or the Inquiry Committee may decide to impose at the conclusion of the enquiry. Sub-section (4) states that: "(4) The Inquiry Committee shall submit its findings and recommendations to the Competent Authority within thirty days of the initiation of inquiry . If the Inquiry Committee finds the accused to be guilty it shall recommend to the Competent Authority for imposing one or more of the following penalties:- (i) Minor penalties- (a) censure; (b) withholding, for a specific period, promotion or increment; (c) stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar; and (d) recovery of the compensation payable to the complainant from pay or any other source of the accused; (ii) Major penalties- (a) reduction to a lower post or time-scale, or to a lower stage in a time-scale; (b) compulsory retirement; (c) removal from service; (d) dismissal from service; and (e) Fine. A part of the fine can be used as compensation for the complainant." 16. A reading of the above provision would undoubtedly help in resolution of this wrinkle. It shows that any penalties which the Committee or the Ombudsperson may impose would constitute such penalties which are relating to the term of employment of an employee in an organization and none of the penalties could, by no stretch of imagination, be imposed on the respondent No.3 herein who is not an employee of the organization. The major penalties that may be imposed consist of a reduction to a lower post, compulsory retirement, removal from service and dismissal from service. Out of the penalties enumerated by sub-section (4) the only penalty which can remotely be associated with the respondent No.3 was at clause (e) of sub-section (4) which states `fine' as a penalty . However , the imposition of fine is to be done in conjunction with the other expressed penalties and is preceded by word `and' which makes it conjunctive and not disjunctive and there are no nuances about it. Therefore, quite clearly the penalty of fine cannot be imposed separately but has to be imposed along with other major penalties prescribed by sub-section (4). 17. Thus, the question whether the petitioner is an employee of the organization and thus competent to bring a complaint to the Ombudsperson is tied in with the question whether the respondent No.3 is an accused or not within the meaning of the term as defined in the Act, 2010 itself. In my opinion, both the conditions have to exist coterminous for the Ombudsperson to proceed on the complaint and the entire tenor of section 8 is an indication that in case one of the conditions is absent, the Ombudsperson is denuded of his powers to determine the complaint. These constitute jurisdictional facts which must exist on the threshold for the complaint to be proceeded with. It may be noticed that although the term `complainant' has also been defined in section 2(e) the term used in section 8 is an employee and not the complainant. It follows that a person filing a complaint before the Ombudsperson or the Inquiry Committee must firstly be an employee in order to become a complainant in a case. Thus the…
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