AZIZ-UR-REHMAN, J.--Through the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 18.03.2017 by Shaheed Zulfiqar Ali Bhutto Institute of Science and Technology [In short SZABIST] against Federal Ombudsman for Protection against Harassm ent of Women at Workplace Islamabad and others the Petitioner has sought the following prayers: - "A]. Quash the proceedings undertaken by the learned Respondent No,1 in terms of Appeal No,1 (319)/2017, namely Fahad Faruqui v. SZABIST and another.
B] Declare that in the circumstances of this case, the learned Respondent No,1 has no jurisdiction and any and all orders passed by it purporting to exercise jurisdiction are void for being coram non judice.
C]. Set aside the Impugned Order dated 13.03.2017 passed by the learned Respondent No,1 in Appeal No,1 (319)/2017, namely Fahad Faruqui v. SZABIST and another and any and all orders and actions consequent thereto.
D]. Permanently restrain the learned Respondent No,1 from exercising jurisdiction in the subject- matter of Appeal No,1 (319)/2017, namely Fahad Faruqui v. SZABIST and another and until the final determination of this Petition suspend the operation of the Impugned Order dated 13.03.2017.
E]. Grant costs for the instant Petition.
2. The brief facts of the case are that Respondent No,3 viz. Searha Asghar was a student of the Petitioner until May, 2015 through an E-mail to one Mst. Shehla Najeeb Siddiqui, who was/is an employee of the Petitioner, lodged a complaint against the Respondent No,2 viz. Fahad Faruqui son of Shoaib Faruqui.
3. The said complaint filed against the Respondent No,2 herein, was taken-up on 23.11.2016, by an Inquiry Committee duly constituted by the Petitioner Institution. Upon deliberation and consideration of the said complaint, the Committee in view of lack of any evidence/materials finally came to the conclusion that Respondent No,3 herein viz. Mr. Fahad Faruqui failed to present any evidence pertaining to recording or rumors/calumniation, claimed to be put-up against him, by the complainant viz. Ms. Searha Asghar. The Inquiry Committee inter alia with such observation resultantly made recommendation of imposing major penalty of dismissal from service upon the Respondent No,3, who at the relevant time was an employee of SZABIST.
4. Respondent No,2 herein, feeling 'aggrieved' and 'dis-satisfied' with the decision of the Competent Authority dated 25.01.2017, reached at, in consequence of the recommendations/findings of the Inquiry Committee, filed an Appeal No,1(319)/2017-FOS under Section 6 of the Protection against Harassm ent of Women at Workplace Act, 2010 on 06.02.2017 before Federal Ombudsman at Islamabad for Protection against the Harassment of Women at Workplace. It appears, that Respondent No,2 herein, before filing of an appeal before Federal Ombudsman had also filed an Appeal No,1(KHI-3)/2017 before the Provincial Ombudsman on 03.02.2017 but perhaps, on account of non-progress of the said Appeal before the Provincial Ombudsman, the 2nd Appeal i,e, Appeal No,1(319)/2017-FOS was filed on 06.02.2017 before the Federal Ombudsman, Islamabad.
5. In view of the objections raised by one Mr. Khusro Pervez Khan, Head of Campus inter alia with regard to the filing/presentation of two [2] appeals before two [2] different forums against the one and same order/decision of 25.01.2017, the 2nd appeal, subsequently filed on 6th February, 2017 before Federal Ombudsman for Protection against Harassment of Women at Workplace Islamabad, was resultantly disposed of as redundant. Order dated 02.03.2017, passed by the learned Ombudsman in Appeal No,1(319)-FOS of 2017 reads as follows: - "02-03-201 7 Appeal No, 1 (319)/201 7-FOS None present on behalf of appellant. Mr. Khusroo Parvez Khan, Head of Campus present on behalf of SZABIST and has placed inquiry proceedings initiated by inquiry committee of SZABIST on the complaint of Mst. Searha Asghar.
By inquiry committee it was observed on 30-12-2016 that appellant Fahad Faruqi is guilty of committed acts of recording and circulating rumors against Mst. Searha Asghar as such he is to be punished under Section 4 Clause 4(ii) (d) of Act of 2010. In the light of recommendation on inquiry committee President of SZABIST has imposed major penalty of dismissal from service on appellant Fahad Faruqi.
Against this dismissal order Fahad Faruqi has already preferred an appeal before Provincial Ombudsman for Protection against Harassment of Women at Workplace on 03-02-2017 which is pending for proceeding and now matter is fixed on 14-03-201 7. It is thereafter on 06-02-2017 appellant Fahad Faruqi has presented another appeal against same order of his dismissal from service before this forum of Federal Ombudsman. Two proceedings at two different forums on same issue and against same order and also in between same parties cannot be initiated.
Otherwise there can be an apprehension of conflicting decisions which might affect any of the party in proceedings, therefore appellant Fahad Faruqi is hereby directed to proceed with appeal former in time before Provincial Ombudsman for Protection against Harassment of Women at Workplace.
In above terms, this appeal is hereby disposed of as redundant." [Underlining is ours]
6. Respondent No,2 herein, upon such disposal of the 2nd Appeal No,1(319)-FOS of 2017 before the Federal Ombudsman, thereafter, in his own wisdom, filed an APPLICATION wherein, a prayer for resuming the hearing in the already disposed of appeal No,1 (319)-FOS of 2017 before the Federal Ombudsman was sought mainly on the assertions made in Para 5 of the said application. Para 5 being relevant is reproduced herein below:- 5) That there is a uncertainly about the time this matter may take at provincial ombudsman, consistent delay will drastically effect appellant fundamental rights granted by the constitution.
That the fate of provincial ombudsman is uncertain. On the 29th December 2016, Advocate General submitted in Supreme Court, that a summary to remove Provincial Ombudsman has already placed at Chief Minister Sindh."
7. The prayer so sought by the Respondent No,2 herein, through such APPLICATION was seriously opposed on behalf of SZABIST. Nevertheless, for the reason given/recorded in Order dated 13.03.2017 [impugned order in the instant Writ Petition], was allowed and consequently, the already 'disposed of Appeal No,1(319)-FOS of 2017 before the Federal Ombudsman, Islamabad was fixed for arguments by re-calling order dated 02.03.2017. The 'operative part' of order passed on 13.03.2017 reads as follows: - "Considering the facts and document brought on record I am of the view that after move of an application for withdrawal by appellant before Provincial Ombudsman the same is deemed to have been withdrawn particularly in the circumstances when the seat of Provincial Ombudsman is lying vacant. Up-shot of above discussion is that order dated 02-03-2017 is hereby recalled.
Application of appellant is allowed. The matter be fixed for final arguments on 20-03-2017.
[Underling is ours] Respondent No,1 as stated by her if is unable to appear before this forum at Islamabad can pursue her case through SKYPE. She be provide this office ID so that she can place her presence through SKYPE. Adjourned to 20-03-2017."
8. The Petitioner herein, thus feeling 'aggrieved: and 'dis-satisfied' by the impugned order dated 13.03.2017, passed by learned Federal Ombudsman, Islamabad, constrained to file the instant Writ Petition on 18.03.2017 inter alia challenging therein the jurisdiction of the Federal Ombudsman vis- a-vis the subject matter of the instant petition. According to the Petitioner's stand, Respondent No,1 herein, has/had no jurisdiction to either entertain the Appeal No,1(319)/2017 FOS (reg) or otherwise, pass the impugned order dated 13.03.2017. The impugned order of 13.03.2017, thus besides being void is corum non-judice, as such, is liable to be set aside otherwise the Petitioner shall be prejudiced seriously.
9. On 20.03.2017 when the instant Petition came-up before the Court then, the following order was passed: - "20.03.2017 Mr. Ravi R. Pinjwani, Advocate for the Petitioner.
1. Urgency granted.
2. Granted subject to all just exceptions.
3&4. Notice to the Respondents for 29.03.201 7. Till the next date, further proceedings in Appeal No, 1(319)-FOS of 201 7 which appears to be pending before Respondent No,1 are suspended and this order shall take effect from today since it is stated that the aforesaid Appeal is fixed before Respondent No,1 today.
Notice under Order XXVII-A C.P.C. to learned Attorney General for Pakistan as also learned Advocate General, Sindh."
10.During pendency of the instant Writ Petition, the Federal Ombudsman in its' own wisdom and in a calculated manner passed a decision on 10.05.2017 whereby, while, setting aside/repelling the recommendations / report dated 18.01.2017 also set-aside the decision dated 25.01.2017 of termination of service of Respondent No,2 of the competent authority of SZABIST upon consideration and pursuant to recommendations/findings of the inquiry committee after observing as follows: - "20. ...I am of the view that inquiry committee constituted by SZABIST has not acted in accordance with law and they have failed to bring forward the names of all witnesses examined by them nor had provided opportunity of cross-examination as available to litigant under section 4(c) of Act of 2010. Defense as pleaded by appellant before inquiry committee was also not considered as no observation in that context is appearing in report of 18-01-2017. Illegalities and irregularities are appearing in inquiry committee report."
11. On allowing the Appeal No,1(319)/2017 FOS (reg.) filed by Respondent No,2 herein, SZABIST was directed by learned Federal Ombudsman for Protection against Harassment of Women at Workplace Islamabad to implement the decision so passed and also submit compliance report within 15 days.
12. Upon passing the aforesaid decision of 10.05.2017 by the Federal Ombudsman for Protection against Harassm ent of Women at the Workplace Islamabad, the Petitioner herein [SZABIST] feeling aggrieved and dis-satisfied by such decision, made/preferred a Representation before Hon'ble President of Islamic Republic of Pakistan which Representation was finally disposed of /decided on 31.08.2017. The operative part of the decision passed on the Representation of the SZABIST reads as follows: 13."In the circumstances, the impugned order of Federal Ombudsman is neither sustainable nor maintainable being exceptional in nature in the eyes of prevailing law. The orders of the Hon'ble High Court of Sindh either for suspension of the proceedings of learned Federal Ombudsman or calling the Judgment dated 10.05.2017 of Federal Ombudsman as void are undoubtedly binding not only on the Federal Ombudsman but also on the appellant forum. It will be appropriate that while' accepting the representation of SZABIST and setting aside the impugned order of learned Federal Ombudsman, the case may be remanded back to the Federal Ombudsman for decision afresh as per directions/final judgment of Hon'ble High Court of Sindh as and when issued/delivered, after providing an opportunity of hearing to all concerned and without being influenced by the earlier decision made in the matter. [Underlining is ours]
14. On 11.01.2018, when the instant petition came-up before us then, we heard Mr. Ravi R. Pinjani, learned counsel for the Petitioner, Mr. Fahad Faruqui son of Shoaib Faruqui-Respondent No,2 in person, Mr. Salman Talibuddin, learned Addl. Attorney General for Pakistan and Mr. Ghulam Shabbir Shah, learned Advocate General Sindh and perused the record.
15. Mr. Ravi R. Pinjani, forcefully contended that the 'impugned order' dated 13.03.2017, passed by the Federal Ombudsman for the protection against harassment of women at workplace, Islamabad is without jurisdiction, as such, void for being coram non judice. Per Mr. Ravi, since Federal Act, draws its' legislative competence through the Concurrent List which list through 18th Amendment [Act X of 2010], has been omitted and now in consequence thereof, the legislative areas/entries in the concurrent List have been devolved onto the Provinces. Per learned counsel, though the Concurrent List [relevant item/entry No,25], has now been omitted but still under Article 270AA(6) of the Constitution of Islamic Republic of Pakistan, 1973, the laws in field before 18th amendment remain continue to be in force until and unless such laws are repealed or otherwise, amended by suitable and competent legislature. Mr. Ravi, next contended that after 18th amendment, and upon promulgation of Provincial Enactment, the Federal Act, under the scheme of Constitution, now does not remain in force rather stand succeeded by the Provincial enactment /law.
16. Mr. Ravi R. Pinjani, learned counsel for the petitioner next urged that Respondent No,1 has failed to appreciate the effect and import of the provisions of Protection against Harassment of Women at the Workplace Act, 2010, which enactment itself provides for existence of Provincial Ombudsman regarding performance of functions in respect of matters of harassment falling within the limits of Province of Sindh.
According to Mr. Ravi Pinjani, learned counsel for the Petitioner, the Provincial Act, enjoys jurisdiction within the territory of Province of Sindh while, the jurisdiction of Federal Act, in respect of like subject matter is limited to Islamabad Capital Territory and other Territories which otherwise, do not form part of any Province. For and in the light of above, Mr. Ravi contended that Federal Ombudsman, in the case in hand, has/had no jurisdiction to entertain the aforesaid Appeal No,1(319)/2017 FOS (reg.) vis-a-vis. a complaint lodged by the Respondent No,2 herein. In support of his contention, Mr. Ravi R. Pinjani, learned counsel for the SZABIST placed reliance on the case of SALIM JAVED BAIG and others v. FEDERAL OMBUDSMAN and others [PLD 2017 Lahore 433], wherein, it was observed as follows:-- "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 Harassment 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 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"
17. Respondent No,2 who appears in person argued that he, as being an aggrieved and dis- satisfied person, had not only filed Appeal No,1[KH]/SV2017 on 03.02.2017 before the Provincial Ombudsman but also filed 2nd appeal No,(319)-FOS of 2017, on 06.02.2017 before the Federal Ombudsman regarding the same grievance. The 2nd Appeal No,(319)-FOS of 2017 filed before the Federal Ombudsman, however, was withdrawn on 02.03.2017. Respondent No,2 admits that later on, he filed an APPLICATION in the 'disposed of' appeal for resuming the hearing of the said appeal which APPLICATION was later on allowed on 13.03.2017 i,e, the 'impugned order' herein.
18. Mr. Salman Talibuddin, learned Addl. Attorney General for Pakistan while, supporting the contentions of the Petitioner's counsel, further submitted that since, the Provincial Government has already appointed the Provincial Ombudsman, as such, the Petitioner be directed to approach and seek redressal of his grievance before the Provincial Ombudsman in respect of his dismissal from service with SZABIST.
19. Mr. Ghulam Shabbir Shah, learned Addl. Advocate General Sindh also supported the stand taken by Mr. Ravi R. Pinjani, learned counsel for the Petitioner and raised his no objection if the Respondent No,2 viz. Fahad Faruqui son of Shoaib Faruqui is directed to approach the Provincial Ombudsman regarding his dismissal from service with SZABIST who according to learned Addl.
Advocate General Sindh is actively functioning.
20. Heard.
21. Manifestly, the Protection against Harassment of Women at Workplace Act, 2010 [Act No,IV of 2010], was promulgated on 11.03.2010 and thereunder the jurisdiction was extended to whole of Pakistan in terms of Section 1(2) of the Federal Act, 2010 [Act No,IV of 2010]. Subsequent to the promulgation of the aforesaid Act No,IV of 2010, the Concurrent List from the Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973, was omitted through the Constitution [18th Amendment] Act, 2010 and in result thereof, the legislative domain of Provincial Legislature was enlarged obviously keeping in view the theme and object of federalism. A Federal Act, prior to 18th Amendment was to draw its' legislative competence from entry No,25 but now upon omission of the Concurrent List this area of legislation, in the post 18th amendment scenario stands devolved onto the provinces.
22. Irrespective of the above, under Article 270AA (6) of the Constitution of Islamic Republic of Pakistan, 1973, the Federal Act IV of 2010 remains continue as a Provincial Act despite omission of the 'Concurrent List' until such time the Federal Act is repealed. On the above aspect of the matter, reference can be made to the case of SALIM JAVED BAIG and others v. FEDERAL OMBUDSMAN and others [PLD 2017 Lah. 433]. wherein. in paras 11 and 12. it was observed as follows:- "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 973 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. 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 Chenone 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 lmran Ali Shah v. Government of Pakistan and 2 others (2013 PLC 143)."
23. Besides, under law no one can be vexed twice for the same cause of action and/or same relief.
In the case in hand, Respondent No,2 against the one and same decision of 25.01.2017, passed by the competent authority SZABIST, in his own wisdom, opted to file two appeals, one before the Provincial Ombudsman at Karachi and another before the Federal Ombudsman at Islamabad which drill on the part of Respondent No, 2 herein is not permissible under law. Apart from above, the Respondents Nos, 2 and 3 are based/residing at Karachi, as such, the Federal Ombudsman has/had' no jurisdiction in the matter to entertain the 2nd appeal filed by Respondent No,2 which was earlier disposed of as redundant vide order dated 02.03.2017.
23. For and in view of all the above, we are of the considered opinion that impugned order dated 13.03.2017, passed by the Federal Ombudsman in Appeal No,1(319/2017-FOS, filed under Section 6 of the Act IV of 2010 [Mr. Fahad Faruqui son of Shoaib Faruqui v. Shaheed Zulifquar Ali Bhutto Institute of Science and Technology through its' President and Ms. Searha Asghar], by assuming jurisdiction in the subject-matter besides being without jurisdiction is un-constitutional, illegal and has been passed without any lawful authority, as such, the same is hereby set aside. The Appeal No,1(KHI- S)/2017 filed by Respondent No,2 before the Provincial Ombudsman for Protection against Harassm ent of Women at Workplace at Karachi be deemed and treated as pending.
24. In view of the facts and circumstances of the case, the learned Provincial Ombudsman for Protection against Harassm ent of Women at Workplace at Karachi is directed to decide the above appeal of the Respondent No,2 on merits and in accordance with law preferably within a period of 45 days.
25. Petition stands allowed accordingly. All the pending applications stand dismissed as having become infructuous.