ABDULLAH BALOCH, J.---This judgment disposes of Constitutional Petition No, 530 of 2017 filed by the petitioner Iqbal Pervaiz, Administrative Officer (B-17). against the order dated 9th May, 2017 (hereinafter referred as, "the impugned Order") passed by learned Additional District and Sessions Judge-III Quetta (hereinafter referred as, "the appellate Court") with the following prayers: In consideration of above, it is prayed that impugned order dated 09-05-2017 passed by the learned Additional District and Sessions Judge-Ill, Quetta/Respondent No,3 may kindly be rectified/modified by deleting the words "to the extent of imposition of penalty at Serial No,3 i,e," 1 increment is stopped" and word 'partly' mentioned in operative part viz para-14 of the impugned order and by declaring that no penalty of any kind whatsoever exist against the petitioner as a result of entire proceedings under Act IV of 2010.
2. Brief facts arising from the instant petition are that the respondent No,2 had filed a complaint against the petitioner for having caused her "Harassment" as defined in section 2(h) of the Protection Against Harassm ent of Women at the Workplace Act, 2010. The matter was referred to the Inquiry Committee, who recorded evidence and personal hearing was also granted to the parties as required under Section 4(4) of the Act IV of 2010. The Inquiry Committee was with the findings: "The particular case does not fall under the jurisdiction of Harassment"
"Hence, it is deduced that it is not the case of Harassment
3. It is further averred that once the Inquiry Committee exonerated the accused (petitioner) from the charge of "harassment". The law stops the Inquiry Committee from proceeding ahead, but the Inquiry Committee from this point onward has converted itself from a judicial forum into a reformist institution resulting in recommendation of the penalties. The above said inquiry report came up for adjudication before the. Competent Authority (Respondent No,1). who imposed three (03) penalties vide notification dated 21st November, 2014, whereby penalty of censure, relinquished from the charge of Administrative Officer (B-17) and stoppage of one annual increment was imposed on him. It is further submitted that the Complainant/respondent No,2 was also punished on recommendation of the Committee. It is further averred that the respondent No,1 agreed with the Inquiry report in hording that the complaint was false and offence of "Harassment" was not proved against the petitioner as it is evident from the parawise comments, which reads as under: "The Inquiry Committee realized that the case does not fall under the Protection against Harassment of Women at the Workplace Act, 2010."
4. Thereafter against the said notification dated 21st November, 2014 of respondent No,1, the petitioner filed an appeal before the District Court Quetta which was transferred to respondent No,3 being Appellate Authority under section 6(4) of Act IV of 2010. Appeal was disposed of by holding that appellant/petitioner may approach the appropriate forum. This order was challenged by the petitioner before this Court by filing C.P No,718/2015, which was allowed and the case was remanded to respondent N'o.3 vide order dated 13th March, 2017. Thereafter the respondent No,3 disposed of the appeal as mentioned above in Para. No, 1.
5. Learned counsel for the petitioner contended that the Appellate Court has not correctly appreciated the provisions of law (Act IV of 2010), which gives jurisdiction to the Inquiry Committee to recommend minor or major penalty, if the accused is found guilty of act of "HARASSMENT" and the competent authority on such recommendation impose the penalty. While in case in hand the Inquiry Committee did not found the petitioner guilty of the offence: that in excess of jurisdiction the respondent No,1 imposed the penalties upon the petitioner: that the appellate Court has not properly followed the law while setting aside only the penalty at serial No,3 pertaining to stoppage of one annual increment: that without accepting the appeal as a whole the partly accepting of appeal amounted to adding a "Proviso" or 'Clog' to adjudication, thus caused in-justice; that the impugned order suffers from misreading, non-reading and mis-appreciation of law, thus not sustainable and liable to be set aside.
6. Conversely, the learned Additional Advocate General strongly opposed the arguments so advanced by the learned counsel for the petitioner and contended that the Committee has rightly recommended the imposition of penalties upon the petitioner and the respondent No,1 had already taken lenient view by imposing minor penalties upon the petitioner and even though the learned appellate Court has further modified the penalties imposed upon the petitioner. Hence, the findings of respondents does not warrant for interference by this Court.
7. We have heard the learned counsel for the parties and perused the record minutely, which reveals that the respondent No, 2 Mst. Tahira Hassan, Social Worker (BPS-8) posted in Training and Rehabilitation Center Project-II, Settelite Town Block No, 5 Kalat Road, Quetta filed a complaint with the respondent No,1 under the provisions of Protection Against Harassment of Woman at the Workplace Act, 2010, against the petitioner with the averments that during posting the petitioner as Administrative Officer BPS-17 in the Director General Social Welfare, Social Education Balochistan Quetta was sorely teasing her in office with mala fides to comply with his sexual wishes. That the accused created intimidating, abusive work environment for her (complainant), who threatened her by different means, such as transfer and posting and chalking out of FIR against her husband.
8. On the such complaint of the respondent No,2, the respondent No I constituted an Inquiry Committee under the chairmanship of Mst. Salma Qureshi comprising Additional Secretary Women and Mr. Salah-ud-Din, Deputy Director and Mr. Ghulam Rasool, Under Secretary Social Welfare Department Quetta as member of committee under the provisions of (ibid) Act. The Committee conducted the inquiry of allegations levelled against the petitioner and after formulating its report, the following penalties against the petitioner and the respondent No,2 were recorded: Recommendations for the accused Iqbal Pervaiz: "A. He may be censured.
B. may be transferred from Quetta Division to any other Division at least, for three years.
C. He may not be given or assigned any such portfolio, where he can deliberately or intentionally, exploit his position or status for personal aggrandizement in terms of material gain or enhancement of influence beyond the sanctioned limits, to the deteriment of the interest of the colleagues, common man or community as a whole.
D. Warning may be issued to him in order to refrain him from such immoral and unscrupulous conduct in future.
E. Increments may be stopped."
Recommendations for the plaintiff Mrs. Tahira Hassan: "A. She may be censured.
B.She may be issued a warning so that she refrain herself involvement in such immoral and unethical procedures for the accomplishment of unjust goals and objectives.
C. She may be forced to comply with her transfer orders issued to her on dated 31-12-2013. In order to teach her a lesson that in future she should obey the orders of the high-ups.
D. Her increment may be stopped.
9. On the above recommendations of the Inquiry Committee, the respondent No,1 imposed the following penalties against the petitioner vide notification dated 21st November, 2014. Reproduction would be beneficial.
"NOTIFICATION.
No, SO-Estt: (SW) 3-18/2014/2063-65/Consequent upon the finalization of Inquiry proceedings under: "Protection against Harassment of Women at the Workplace Act, 2010" following penalties are hereby imposed upon Mr. Iqbal Pervaiz, Administrative Officer (B-17), Director General, Social Welfare and Special Education, Balochistan, Quetta with immediate effect: i. Censure. ii. Immediately relinquish the charge of the post of Administrative Officer (B-17) Quetta and report to Secretary Social Welfare Department. iii. One annual increment is stopped.
BILAL JAMALI SECRETARY"
The aforesaid notification was assailed before the District Judge, Quetta, which was initially returned to the petitioner for want of jurisdiction vide order dated 1st January, 2015 with the direction to present it before the Provincial Ombudsman.
The said order was assailed before this Court in C. P No,718/2015 and after hearing the parties the matter was remanded to the appellate Court vide order dated 13th March, 2017 with the following directions: "The Additional District Judge-III, Quetta was under some misconception and failed to assume the jurisdiction surely lies in him. It is always advisable that a Judicial. Officer before writing of a judgment, go through the relevant provision to avoid any error to the effect. In view thereof order dated 17th June, 2015 is not sustainable, thus set aside. The case is remanded to the Additional District Judge-III, Quetta with direction to deal with the case for a decision on merit strictly in accordance with the law. It is further directed that the appeal must be disposed of within shortest possible time preferably within a period of two months, as considerable time has already been lapsed due to the acts on part of the Courts."
10.However, in pursuance of above order, the parties were heard and the appeal was partly allowed by the appellate Court vide order dated 9th May, 2017.
11. The bare perusal of impugned order reflects that the learned appellate Court not only failed to follow the directions of this Court in mis-appreciation of law (ibid) Act 2010, that the findings were recorded by the competent authority and the Inquiry Committee were not dealt in accordance with law as required by the (ibid) Act, 2010. That once the petitioner was not found guilty of the offence of "Harassment", instead of declaring the all actions taken by the respondents as null and void only partly allowed the appeal to the extent of penalty No,3, stoppage of one annual increment and the remaining penalties were kept intact. It was against the scheme of law applicable in the matter.
12. It is observed that the main object of legislature was that to protect the women in their work place from harassm ent while performing their duties and to provide them a pleasant working environment, but simultaneously the provisions of law binding upon the women too, as defined the term "Harassment" by Section 2(h) of (ibid) Act as: "(h) Harassm ent means any unwelcome sexual advance, request for sexual favours 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, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment"
13. Accordingly for redressal of such complaints a mechanism is provided under Section 3 of the Act 2010. There is constitution of an Inquiry Committee for the purpose to inquire into the complaints under the Act 2010. While Sections 4 and 5 of the Act 2010 contained the procedure for holding inquiry, and the powers vested with the Committee for the purpose. Subsection (3) of Section 5 of the Act 2010 further empowered the Committee to recommend for appropriate action against the complainant, to the Ombudsman appointed by virtue of Section 7 of the Act 2610, if the allegations levelled against the accused found to be false and made with mala fide intentions, the Committee have to conduct the inquiry and on completion have to recommend imposition of penalties if accused found guilty to the competent Authority. A provision of appeal is provided under Section 6 of the Act 2010 on decision of the competent Authority.
In the case in hand the Inquiry Committee though proceeded with the matter and recommended a number of penalties against the petitioner. Pursuant thereto the impugned Notification dated 21st November 2014 was issued, whereby three penalties were imposed on the petitioner. The Inquiry Committee was though with the findings that: "D. The particular case does not fall under the jurisdiction of Harassment because the scenario developed between the plaintiff and the accused with the mutual consent; for the accomplishment of their illegitimate vested interests. However, both the parties in general and the plaintiff in particular took the confronting stance after realizing the fact that the accused, being helpless, cannot support her in the case of undue promotion. During the period it was also realized by the plaintiff that she has been deceived by the accused over the issue.
E. As mentioned before, that the relationship developed between both the parties for the accomplishment of their vested interests. Both of them went deep into the relationship that had no recognition in our society. However, by giving the name of friendship to the relationship. They continued to exchange gifts, support use each other and go for excursions, that is unveiled during the in person hearing under the solemn oath.
F. As evident from the point number (4) of the findings that the accused and the plaintiff used to go for excursions, they used to exchange gifts and had a strong relationship of so-called friendship. Hence, it is deduced that it is not the case of Harassment rather it was the mala fide intention of both the parties far the fulfillment of their unjustified motives."
The appellate court while entertaining the appeal was with the findings: "13. The perusal of record reveals the fact that the enquiry committee had made recommendations with regard to imposition of penalty against the appellant as well as respondent No. 2 but no specific allegations were proved against the appellant by the enquiry committee. The competent authority without properly appreciating the recommendations and findings of enquiry committee imposed the penalties which has been mentioned and reproduced above. Although the minor penalties have been imposed: however, in my considered opinion the penalty at serial No. I is "censure" which is not any penalty affecting the service of the appellant whereas the penalty at serial No. 2 is with regard to departmental affairs of the service of appellant as such both the penalties are not affecting the service of appellant as far as the penalty at serial No. 3 is concerned with regard to stoppage of 1 annual increment is imposed by the competent authority is all together contrary to the findings of the enquiry committee as well as the record of the case. The enquiry committee has never recommended for stoppage of 1 annual increment as such the order of competent authority to the extent of penalty at Serial No. 3 was not required to be imposed under the relevant provisions of law or findings of the enuiry committee.
14. .................. the competent authority as per findings and recommendations of enquiry committee.
In the instant case the Competent Authority has not dealt with the matter in accordance with the provisions of the Protection Against Harassment of Women at the Workplace Act 2010, as such this court while exercising its powers under the provisions of section 6(4) has jurisdiction to interfere and check the imposition of penalty imposed by the competent authority, under such circumstances whatever has been discussed above. I am of the considered opinion that the Competent Authority has exceeded its jurisdiction while imposing penalty at serial No. 3 i.e. "1 annual increment is stopped". Thus keeping in view the above mentioned facts and circumstances, the order the Competent Authority dated 21st November 2014 is hereby set aside to the extent of imposition of penalty add (-) serial No.3 i.e. "1 annual increment is stopped. The appeal is partly accepted. ----."
14. The Inquiry Committee, the competent Authority and the Appellate Authority, all the three overlook the law. As required the compliant must be for an act of Harassment filed by an aggrieved person, either man or woman. Thus presence of act of Harassment, as defined by the Act 2010 is the basic requirement. In the case in hand though respondent No. 2 was with the complaint, duly processed by the Inquiry Committee, formed for the purpose, who was with the findings as reproduced hereinabove, that the act on part of the accused (present petitioner) did not fall within the ambit of Harassm ent, as soon arrived to the conclusion might have recommended for rejection of the complaint and exoneration of the accused from the charge. Instead thereof it recommended for imposing of penalties. While the competent Authority without noting the lapse penalized the petitioner. The appellate authority, the Additional District and Sessions Judge-III, Quetta, without application of its judicious mind passed the order, impugned before this Court. All the three forums erred in law, thus the recommendations made and the orders passed were of no legal effect, thus not sustainable.
15. Though a provision of representation to President or Governor against order of Ombudsman available under Section 9 of the Act 2010, but as the initial act on part of the Committee was in complete negation of law, thus the orders passed by the competent Authority and the Appellate Authority on basis thereof were of no legal effect. In addition in absence of presence of act of Harassm ent no jurisdiction lies with the Committee to recommend and with the competent Authority to impose the penalty, thus the entire proceedings followed and orders passed become null and void for want of jurisdiction. The honorable Supreme Court while dealing with the issue held in case Raunaq Ali v Chief Settlement Commissioner, reported in PLD 1973 Supreme Court 236 that: "It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide either rightly or wrongly and merely a wrong decision does not render the decision without jurisdiction.
To amount to a nullity, an act must be non-existent to the eye of law; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction............."
In view of the stated mis-exercise of jurisdiction on part of the forums concerned, the provision of representation would do no good to the petitioner, who was suffering from last four years, his fundamental rights were violated, thus mandated exercise of extra ordinary powers by this Court.
For the reasons discussed hereinabove, we, therefore, accept the petition. The impugned order dated 9th May 2017 of Additional District and Sessions Judge-III, Quetta, is modified as prayed.
Consequently the Notification dated 21st November, 2014 is set aside, and the penalties imposed upon the petitioner are hereby quashed.
The petition is disposed of in the above terms.