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Official Citation: 2025 IHC 16
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Ms. Nadia Sarwar vs Mr. Aqeel Abbas And 4 Others
This judicial decision was delivered by the Islamabad High Court on 2024-12-31. The matter involves proceedings between Ms. Nadia Sarwar and Mr. Aqeel Abbas And 4 Others, officially reported as 2025 IHC 16. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2025IHC16
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title: Ms. Nadia Sarwar vs Mr. Aqeel Abbas And 4 Others Case No.: W.P. No. 105 of 2015 Date of Judgment:2024-12-31 Reported As: 2025 IHC 16, 2025 PLC (C.S.) 358 Result: Petition Allowed
Judgment
SAMAN RAFAT IMTIAZ, J.- 1. The Petitioner/Complainant [Ms. Nadia Sarwar] has filed the instant Writ Petition assailing the Order dated 11.11.2014 ("Impugned Order") passed by the Respondent No. 3 [President, Islamic Republic of Pakistan ("President")] whereby representations filed by the Respondents No. 1 and 2 [Mr. Aqeel Abbas and Mr. Usman Shahid] were accepted and the Judgment dated 4.2.2014 ("Ombudswoman Judgment") passed by the Respondent No. 4 [Federal Ombudsman for Protection against Harassm ent of Women at Workplace] ( "Ombudswoman") was set aside. 2. The facts, as narrated in the Memorandum of Petition, briefly stated are that the Petitioner/Complainant has been an employee of the National Bank of Pakistan ("Bank") since 2008 where she was subjected to harassment. The Petitioner/Complainant filed a complaint to the President of the Bank against the Respondents No. 1 and 2 on 24.09.2012 ("First Complaint") but no action was taken. The Respondents No. 1 and 2 started victimizing the Petitioner/Complainant by creating an intimidating, hostile, and offensive work environment. The Petitioner/Complainant approached and informed the Divisional Head (North) about the harassment and victimization via telephone on 24.6.2013 and by e-mail dated 26.6.2013 ("Email") but to no avail. The Petitioner/Complainant filed another complainant dated 02.07.2013 ("Second Complaint") to the President of the Bank, whereby she specifically mentioned some of the instances of harassment in her Complaints. The Petitioner alleges that no action or inquiry was conducted by the Bank. 3. The Petitioner/Complainant finally approached the Respondent No. 4/Ombudswoman by filing a formal complaint on 03.9.2013 ("Complaint to Ombudswoman") under the Protection against Harassm ent of Women at the Workplace Act, 2010 ("Workplace Harassment Act"), which was
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decided vide the Ombudswoman Judgment. The preliminary objection raised by the Respondents No. 1 and 2 before the Respondent No. 4/Ombudswoman was that the Complaint to the Respondent No. 4/Ombudswoman is barred by res judicata as the Petitioner/Complainant's team was changed on 1.10.2012 with her consent and final order was passed by the President of the Bank. Such objection was overruled by the Respondent No. 4/Ombudswoman by noting that the requirement of law is to refer the complaint to the Inquiry Committee but that no such committee was constituted by the Bank as required by Section 3 of the Workplace Harassment Act. The Respondent No. 4/Ombudswoman found that the witnesses produced by the Respondents No. 1 and 2 were not impartial as they were on duty and their further promotion lay in the hands of the said Respondents. On the other hand, she found that the statements of the Petitioner/Complainant were supported by the witnesses and have not been challenged in cross-examination which amounts to acceptance of plea. As such the Respondent No. 4/Ombudswoman vide her Judgment found that the Petitioner/Complainant established her case. She therefore imposed Major Punishment of 'compulsory retirement' upon the Respondents No. 1 and 2 in terms of Section 4 (4) (ii)(b) of the Workplace Harassm ent Act. 4. The Respondents No. 1 and 2 filed their respective representations before the Respondent No. 3/President on 14.2.2014. The Petitioner/Complainant submitted her written reply and also filed cross representation on 14.2.2014 praying that the Respondents No. 1 and 2 be given punishment of 'dismissal from service'. 5. The Respondent No. 3/President vide the Impugned Order accepted the Respondents No. 1 and 2's Representations to set aside the Ombudswoman Judgment by finding, inter alia, that the Petitioner/Complainant raised new allegation for the first time in her affidavit-in-evidence [against the Respondent No. 1] which was missing in all three prior complaints and was even otherwise negated by the witnesses; that entire evidence of Respondents' No. 1 and 2 was discarded by the Respondent No. 4/Ombudswoman on the basis that the witnesses were on duty and did not obtain leave of absence from the bank but on the other hand the evidence of the Petitioner/Complainant's witnesses was accepted without inquiring whether they obtained leave of absence; that the Petitioner/Complainant assigned role to the Respondent No.2 in her Second Complaint and new pleas about insolent remarks made by him were submitted in her evidence; and that in the meantime the Investigation Committee of the Bank announced the decision to issue a stern warning. Thus the Respondent No. 3/President vide the Impugned Order set aside the Ombudswoman Judgment and modified the decision of the Bank's Investigation Committee and directed the Bank to issue 'Censure' in terms of Section 4 (4)(i)(a) of the Workplace Harassment to both the Respondents No. 1 and 2. Hence, this Writ Petition by the Petitioner/Complainant. 6. The learned counsel for the Petitioner/Complainant argued that the Respondent No. 3/President failed to appreciate the provisions of the Workplace Harassment Act and that the Impugned Order suffers from misreading and non-reading of evidence. He firstly pointed out that the Bank had not constituted an Inquiry Committee as required under Section 3 of the Workplace Harassment Act at the relevant time and therefore, the Petitioner/Complainant sent her First and Second Complaints to the President of the Bank. He denied that the Petitioner/Complainant introduced any new pleas and explained that in the First Complaint the Petitioner/Complainant simply informed the President of the Bank in a generalized manner that she is facing harassment at the hands of Respondents No. 1 and 2. The learned counsel highlighted that the Petitioner/Complainant specifically stated in her First Complaint that it was merely a short snapshot but that she wants to meet the President of the Bank in order to explain her situation. He further submitted that in her Email to the EVP- Divisional Head Corporate and Banking Division (North) she stated that she would provide further details including specific wording in due course of time and that finally in her Complaint to the Respondent No. 4/Ombudswoman she mentioned the inappropriate remarks and comments, etc.,
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that she had been subjected to. In this background the learned counsel for the Petitioner/Complainant argued that the predominant reason given by the Respondent No. 3/President that the Petitioner/Complainant introduced new pleas in her Second Complaint by assigning a role to the Respondent No. 2, is erroneous which has resulted in miscarriage of justice as no new plea was raised by the Petitioner/Complainant rather only specific instances of harassm ent and details thereof were provided. He also explained that the Petitioner/Complainant was working with the Respondent No. 1 whereas the Respondent No.2 is the Corporate Head and following her First Complaint the Respondent No.2 by way of letter dated 1.10.2012 changed her team. He argued that the Respondents No. 1 and 2's contention that the Petitioner/Complainant's Complaint stood resolved by the Investigation Committee with the consent of the Petitioner/Complainant as evident from the Letter dated 1.10.2012 is without merit because neither there was any Inquiry Committee under Section 3 of the Act, 2010 nor can the Letter dated 1.10.2012 written by the Respondent No. 2 be treated as a decision of an Inquiry Committee by any stretch of imagination. Even otherwise he relied upon Qazi Zaheer Ahmed vs. Federal Ombudsman Secretariat for Protection Against Harassment at Workplace, Islamabad and 2 others, 2021 PLC (C.S.) 839 in which this Court according to him has held that if the complainant is dissatisfied with the action or inaction of the inquiry committee or the competent authority it is the Respondent No. 4/Ombudswoman that the complainant ought to approach for redress of such grievance. In the instant case the learned counsel for the Petitioner/Complainant pointed out that in fact the Petitioner/Complainant never received any response from the Bank. He also submitted that the Petitioner/Complainant was compelled to send Email and file the Second Complaint due to the retaliatory behavior of the Respondents No. 1 and 2 in response to the Petitioner/Complainant's First Complaint. He submitted that the evidence shows that the Petitioner/Complainant's performance appraisals were previously positive but since her First Complaint against the Respondents No. 1 and 2 they show a downward trend. 7. The learned counsel for the Petitioner/Complainant then referred to the evidence produced by the Petitioner/Complainant to show that CWs Mr. Saqib Saleem, Mr. Mehmood Rafique and Mr. Shoaib Qaisrani testified regarding various instances of inappropriate language and sexual innuendos by the Respondents No. 1 and 2; CW Ms. Ayesha tendered an affidavit and testified regarding the past inappropriate conduct of the Respondent No. 2 towards her; CW Mr. Zia Iftikhar also tendered an affidavit and testified regarding overall behavior of the Respondent No.2 towards team members and also specifically against the Petitioner/Complainant; CW Mr. Asad Saleem recorded his statement wherein he submitted that the preliminary performance appraisal of the Petitioner/Complainant shows 'cuttings' and testified that they were with the consent and instructions of the Respondent No.2; CW Mr. Muhammad Babar Ghus also confirmed that the changes made in the annual appraisal report of the Petitioner/Complainant for the year 2012 were based on instructions of the Respondent No. 2 and that after filing of the First Complaint her performance has lowered as per such reports; and CW Mr. Muhammad Irfan Baig testified regarding Petitioner/Complainant's good character. The learned counsel for the Petitioner/Complainant referred to Exhibits C13, C14, C16, and C17 and submitted that transfer letters were issued by the Respondent No. 2 for the transfer of the Petitioner/Complainant and other complaints were also issued after the Petitioner/Complainant's First Complaint as retaliatory measures. He submitted that no inquiry was conducted regarding the complaint of unauthorized/missing data against the Petitioner/Complainant. 8. The learned counsel for the Petitioner/Complainant submitted that against this overwhelming evidence the Respondents No. 1 and 2 were unable to provide any reasonable explanation or motive for the Petitioner/Complainant to falsely implicate the Respondents No. 1 and 2. He argued that the evidence has been misread or not read at all by the Respondent No. 3/President, which
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was properly appreciated by the Respondent No. 4/Ombudswoman. However, he conceded that the Respondent No. 4/Ombudswoman has not discussed the evidence of the Petitioner/Complainant in the Judgment dated 4.2.2014 in great detail. 9. He submitted that although in the instant case multiple witnesses came forward to corroborate the Petitioner/Complainant's stance and to testify that the Respondents No. 1 and 2 used inappropriate language and sexual innuendos toward the Petitioner/Complainant in their presence, in cases of unseen occurrences the court may look at the testimony of witnesses who have also made similar complaints against the accused persons as well as whether there exists any motive for false implication in order to arrive at a just decision. 10. Both the learned counsels for the Respondents No. 1 and 2 argued that the Respondent No. 3/President has correctly appreciated the law and the facts involved in the instant matter and emphasized that the Petitioner/Complainant tried to improve her case by taking new pleas in each of the complaints filed by her. The learned counsel argued that facts not alleged in the First Complaint are inadmissible on the basis of principles applied in criminal cases. 11. The learned counsel for the Respondents No. 1 submitted that Criminal Procedure Code, 1898 ("Cr.P.C") is applicable upon the proceedings under the Workplace Harassment Act. He relied upon Maimoona Rajab vs. Province of Punjab and another, PLD 2021 Lahore 598 where it has been stated that the proceedings before the Respondent No. 4/Ombudswoman are quasi-judicial. In this regard he referred to Section 1(2), Cr.P.C., and drew the Court's attention to Section 12 of the Workplace Harassm ent Act which provides that the provisions of the said Act shall be in addition to and not in derogation of any other law for the time being in force. As such, the learned counsel for the Respondent No. 1 submitted that although Cr.P.C. may not be applicable upon the Respondent No. 4/Ombudswoman's proceedings stricto sensu the provisions and the principles thereunder can be applied where the provisions of the Workplace Harassment Act are silent as per the discretion of the Respondent No. 4/Ombudswoman. He therefore argued that new pleas could not have been added by the Petitioner/Complainant after her First Complaint. 12. The learned counsel for the Respondent No. 1 submitted that the Petitioner/Complainant came under the supervision of the Respondent No. 1 in March, 2011 and remained as such till September, 2012. He contended that the motive for the Petitioner/Complainant's false allegation against the Respondent No. 1 is her appraisal in 2011 in which she got a 'C' grade which was against the Petitioner/Complainant's expectations. He pointedout that there was no witness produced by the Petitioner/Complainant against the Respondent No. 1. He also highlighted that there was no mention of sketches in the Petitioner/Complainant's Complaint which were mentioned for the first time in her affidavit-in-evidence. Last but not least, he submitted that the Petitioner/Complainant's grievance if any stood resolved as her team was changed with her consent as is evident from the Letter dated 1.10.2012 issued by the Respondent No. 2. He relied upon Prof. Dr. Naheed Haq vs. Province of Balochistan and 2 others, PLD 2024 Balochistan 6; M. Hamad Hassan vs. Mst. Isma Bukhari and 2 others, 2023 SCMR 1434; Atif Riaz vs.Federation of Pakistan, PLD 2023 Lahore 536; Shahina Masood and 9 others vs. Federal Ombudsman Secretariat and 2 others, 2020 PLC (C.S.) 186. 13. The learned counsel for the Respondent No. 2 highlighted that the Respondent No.2 was not named in the First Complaint and that he was named subsequently by the Petitioner/Complainant in an effort to improve her case. He highlighted that the Bank was never made a party to the proceedings. He also referred to the Bank's comments dated 24.2.2014 filed before the Respondent No. 3/President whereby it was concluded that charges/allegations of harassment against the Respondents No. 1 and 2 have not been proven yet the competent authority at the Head Office decided to issue stern warning to both the Respondents No. 1 and 2. He contended that evidence produced before the lower fora cannot be discarded in writ jurisdiction and that the
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Petitioner/Complainant has not made any ground for invocation of writ jurisdiction. He argued that even otherwise Article 45 of the Constitution empowers the President to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. He relied upon Raja Tanveer Safdar vs. Mrs. Tehmina Yasmeen and others, PLD 2024 SC 795 and Kinza Anwar vs. Office of the Omdusman for Protection Against Harassment of Women at the Workplace and others, 2022 CLC 1477. 14. Notice under Order XXVIIA C.P.C. was issued to the learned Attorney General for Pakistan. The learned AAG submitted that Cr.P.C. would be applicable in view of the terms used in the Workplace Harassm ent Act namely 'accused' and 'complaint' and also in view of the power to impose fine as a penalty which is deposited partly in the Government Treasury thereby bringing such penalty in the ambit of Section 53, the Pakistan Penal Code ("PPC"). 15. While exercising his right of rebuttal the learned counsel for the Petitioner/Complainant submitted that the provisions of the Cr.P.C. are not applicable upon the Workplace Harassment Act and as such principles which are applicable upon criminal proceedings are not relevant to cases under the said Act. He argued that a complete procedure has been provided in the Workplace Harassm ent Act, 2010 and in the Protection against Harassment of Women at the Workplace (Filing and Disposal of Complaints) Rules, 2013 ("Workplace Harassment Rules"). He further explained that Section 12 of the Workplace Harassment Act is to be read with Rule 10(7) of the Workplace Harassm ent Rules but conceded that where provisions of the Workplace Harassment Act are silent in terms of conduct of proceedings or inquiry the Respondent No. 4/Ombudswoman has discretion to invoke any provision of any other law. He referred to the Representations filed by the Respondents No. 1 and 2 before the Respondent No. 3/President whereby it has been admitted that the Bank Inquiry had become infructuous due to the filing of the Complaint to the Respondent No. 4/Ombudswoman. He argued that in case of misreading of evidence by the lower forum the High Court can read the evidence on the record. Lastly, he submitted that the Impugned Order passed by the Respondent No. 3/President was not a decision passed under Article 45 of the Constitution. He relied upon Nadia Naz and another vs. The President of Islamic Republic of Pakistan, Islamabad and others, PLD 2023 SC 588; Uzma Naveed Chaudhary and others vs. Federation of Pakistan and others, PLD 2022 SC 783; Qazi Zaheer Ahmad vs. Federal Ombudsman Secretariat for Protection Against Harassment at Workplace, Islamabad and 2 others, 2021 PLC (C.S.) 839. 16. Vide order dated 5-12-2023 this Court appointed Ms. Sara Malkani Advocate as Amicus Curiae. According to the written submissions of the Amicus the nature of penalties prescribed under the Workplace Harassm ent Act are civil in nature and as such the burden of proof to be applied is a balance of probabilities, which in the case of harassment should be considered from the perspective of a reasonable woman. She relied upon Nadia Naz and another vs. The President of Islamic Republic of Pakistan Islamabad an others, PLD 2023 SC 588; Imran Ahmed Khan Niazi vs. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly and 9 others, PLD 2017 SC 265; and Apparel Export Promotion Council vs. A.K. Chopra, AIR 1999 SC 625. 17. I have heard the learned counsel for the parties and have also perused the record. The Impugned Order reveals that it is based on the following four broad reasons: (a) Decision of Investigation Committee of the Bank; (b) New plea in Petitioner/Complainant's Affidavit tendered in evidence against Respondent No. 1 negated by witnesses; (c) New plea raised in Second Complaint by assigning role to Respondent No. 2 and new plea in evidence regarding insolent remarks made by him; and (d) Rejection of Respondents' evidence on wrongful grounds. What is the legal significance of the findings of the Investigation Committee of the Bank?
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18. The Respondent No. 3/President has recorded in the Impugned Order that the Bank filed its comments whereby it has been intimated that departmental proceedings were conducted and the allegation of harassm ent was not proved against Respondents No. 1 and 2 yet they were warned to be careful in future in their inter-personal communication with staff especially with female and to adopt decent behavior and that the Investigation Committee has announced the decision to issue stern warning to both the Respondents No. 1 and 2. 19. The copy of the Comments submitted by the Bank on 24.2.2014 to the Respondent No.3/President in respect of Respondent No. 2's Representation have been appended with the para-wise comments filed on behalf of Respondent No.3/President before this Court. Vide such comments the Bank stated that the complaint of the Petitioner/Complainant was investigated by a Committee comprising Ehsan Tabassum, SVP and Zahida Waheed, VP as per the Workplace Harassm ent Act. However, the Inquiry Committee that each organization is required to constitute pursuant to Section 3(2) of the Workplace Harassment Act must consist of three members. As such, the Investigation Committee of the Bank was not in accordance with the law. 20. Be that as it may, neither the findings and recommendations of the Investigation Committee of the Bank are appended with the comments nor is there any mention of the date on which such findings and recommendations were purportedly submitted by the Investigation Committee to the Competent Authority (as defined in the Workplace Harassment Act) as required under Section 4(4) of the Workplace Harassm ent Act or when the Competent Authority imposed the penalty as per Section 4(5) thereof. This is particularly important as the Petitioner/Complainant has specifically alleged in the instant petition that she received no response from the Bank to her complaints. The Petitioner/Complainant's stance is fortified by the Respondent No. 2's reply to the Respondent No. 4/Ombudswoman whereby he specifically stated that the Bank conducted a fact-finding exercise but that he is not aware of the final report of the Bank. The Respondent No. 1 has also not referred to any final decision of the Bank's Investigation Committee or made any statement that he was ever in receipt of the same. Neither the Respondent No. 1 nor the Respondent No. 2 stated that any penalty was imposed on them by the Competent Authority or that they were issued a stern warning. Moreover, under the Workplace Harassment Act it is the Inquiry Committee who if it finds the accused to be guilty recommends imposition of the penalties as provided in Section 4(4) of the Workplace Harassm ent Act which does not include stern warning. 21. The first time that it ever came to light that the Investigation Committee submitted any findings to the Competent Authority or that the Competent Authority took any action was vide the Bank's comments to the Respondent No. 3/President and that too without copy of such findings and recommendations or proof of submission as required under Section 4(4) of the Workplace Harassm ent Act and/or its implementation by the Competent Authority as required under Section 4(5). The Bank's comments merely provide the gist of the findings of the purported Investigation Committee and the conclusion drawn. 22. On top of it, the Bank prayed for the Respondent No. 3/President to set aside the punishment awarded by the Respondent No. 4/Ombudswoman on the basis of the findings of the Bank's Investigation Committee and to approve the punishment of stern warning to the accused. The Bank has no legal basis for praying to the Respondent No. 3/President for setting aside the punishment awarded by the Respondent No. 4/Ombudswoman and that too on the basis of the findings of the Investigation Committee which was not in accordance with the law. Even otherwise, according to the scheme of law any party aggrieved by the decision of the Competent Authority may file an appeal to the Respondent No. 4/Ombudswoman whereas the Bank has prayed for setting aside of the Ombudswoman's Judgment on the basis of the decision of the Competent Authority. Such prayer by the Bank is clearly indicative of its partiality toward the Respondents No. 1 and 2.
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23. The Bank further states in its comments that the before the Respondent No. 4/Ombudswoman. It may be recalled that the Petitioner/Complainant filed the First Complaint on 24.9.2012 and the Second Complaint on 2.7.2013. The Inquiry Committee under Section 3 is required to be constituted within thirty days of the enactment of the Workplace Harassment Act and Section 4(1) of the Workplace Harassm ent Act requires the Inquiry Committee to communicate to the accused the charges and statement of allegations leveled against him within three days of receipt of a written complaint. I have already concluded that the Investigation Committee constituted by the Bank was not in accordance with the requirement of Section 3(2) of the Workplace Harassment Act but even otherwise the comments filed by the Bank before the Respondent No.3/President do not provide the date on which the so-called Investigation Committee was constituted by the Bank. Vide their Representations filed before the Respondent No.3/President the Respondents No.1 and 2 state that in response to the Petitioner/Complainant's Second Complaint an Inquiry Committee was constituted by the competent authority who summoned the parties for inquiry on 18.9.2013. The Respondent No. 2 along with his written…
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