While upholding Islamabad High Court’s verdict against a decision of Federal Ombudsperson against Harassment Kashmala Tariq on Tuesday, the Supreme Court ruled that sexual intention must be proved in the cases that are proceeded under the Protection against Harassment of Women at Workplace Act, 2010.
A three-member bench of the top court comprising Justice Mushir Alam, Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmad announced a 12-page verdict – a copy of which is available with TLTP – in response to appeal against IHC decision that turned down a petition seeking restoration of an order of the incumbent Federal Ombudsperson for Protection against Harassment of Women.
A female employee of the Pakistan Television (PTV) against her male colleagues had filed a complaint before the Federal Ombudsperson. During adjudication of the complaint before the Federal Ombudsperson, a parallel departmental committee also conducted enquiry of the matter and resultantly dismissed her from the services.
Upon the female complainant’s application the Federal Ombudsperson on October 16, 2017 treated action and proceedings of the departmental enquiry as harassment and reinstated the female complainant service while setting aside the departmental disciplinary proceedings.
Challenging the Federal Ombudsperson before the appellant forum the president of Pakistan who turned down the federal ombudsperson’s decision. Later on the female complainant assailed the president’s decision before Islamabad High Court which upheld the president’s decision in the matter.
Again the IHC verdict was challenged before the Supreme Court which turned down the appeal ruling, “The aggrieved person under the provisions of the Act, 2010 has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behavior, and/or conduct,”.
“None of the provisions of the Act, 2010 empowers the Federal Ombudsman to reinstate an aggrieved person back into service – Therefore, the decision of the President, as maintained through impugned judgment of the Islamabad High Court, reversing and setting aside the order and direction of the Federal Ombudsman to reinstate the petitioner is unexceptionable and calls for no interference,” read the 12-page verdict.
It added, “Since the Act, 2010 itself limits the protection it offers to the harassment having sexual orientation, the Court is shackled to interpret it in line with its express charging clause (h) of section 2 of the Act, 2010. Any other interpretation advanced by this Court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of Constitution,”.
The bench also adjudicated the questions as whether the actionable “harassment”, as defined in section 2(h) of the Act, 2010, was of restricted application or applied to all manifestations of harassment and whether the federal ombudsman had the jurisdiction and/or authority to reinstate the petitioner into service under the provisions of the Protection Against Harassment of Women at Workplace Act, 2010.
The court also said that harassment, in all forms and manifestations, may it be based on race, gender, religion, disability, sexual orientation, age-related, an arrangement of quid pro quo, and/or sexual harassment etc., affects and violates the dignity of a person, as guaranteed under the Constitution of Pakistan, 1973.
