ATHAR MINALLAH, C.J. Through this consolidated judgment, I shall decide the following three writ petitions as common questions of law and facts have been raised in these petitions.- i. Sikandar Ismail Khan v . Ms. Seemi Abbas & 2 others (W.P. No.1849/2019). ii. Administrator Islamabad Club v . Ms. Seemi Abbas & 2 others (W.P. No.2426/2019). iii. Abdur Rehman Alvi Advocate v. Government of Pakistan through President of Pakistan & 4 others (W.P.
No.819/2019).
2. The facts, in brief, are that the complainant Ms Seemi Abbas (hereinafter referred to as 'Respondent') was appointed on 22-07-2015 as Assistant Manager in the Islamabad Club (hereinafter referred to as the 'Club').
Subsequently, her employment contract was extended from time to time. The last extension was valid till 21- 10- 2017. On 23-10-2017, the respondent filed a complaint alleging work related sexual harassment by the petitioner namely, Sikandar Ismail Khan (hereinafter referred to as the 'Petitioner'). The latter at that time was one of the members of the Managing Committee of the Club. Since no action was taken by the Managing Committee of the Club, therefore, the complainant approached the National Commission on Human Rights. The latter vide letter, dated 27-11 2017, advised the Club to initiate proceedings. The Club constituted a committee consisting of five members of the Club besides its General Manager. The committee, in its inquiry report, dated 05-12-2017, had concluded that the complaint filed by the respondent was without substance. The complainant did not prefer an appeal. However, a copy of the inquiry report was sent by the Club to the secretariat of the Federal Ombudsperson for Protection of Women against Harassment at Workplace (hereinafter referred to as the 'Ombudsperson'). The learned Ombudsperson sought response from the complainant/Respondent. It appears from the record that probably the learned Ombudsperson treated the copy of inquiry report as an appeal under section 6 of the Protection against Harassment of Women at Workplace Act, 2010 (hereinafter referred to as the 'Act of 2010' ). After affording an opportunity of hearing to the parties, the learned Ombudsperson vide judgment, dated 19-09 2018, held that allegations of sexual harassment at workplace against the Petitioner stood established and consequently it was ordered as follows.- "i. Impugned decision of the Inquiry Committee, Islamabad Club vide letter dated 16.02.2018 is liable to be set aside. The appellant/complainant is restored to the position prior to her complaint dated 23.10.17 with all back benefits. ii. As respondent no.1 is holding the position on honorary/basis, it is directed that he must be separated from the portfolio of Member Management Committee with immediate effect and shall not hold any such position in future. iii. Membership of respondent no.1 shall be suspended for a period of six months with immediate effect. iv. Major Penalty of Fine u/s 4(4)(ii)(e) of the Act to the tune of Rs.1,000,000 is imposed on Sikandar Ismail, out of which Rs.500,000 is payable to Seemi Abbas as compensation.
Fine u/s 11(3) of the Act to the tune of Rs.100,000 is imposed on Islamabad Club for not having a duly constituted inquiry committee under the Act."
The petitioner preferred a representation before the President and that too was dismissed vide order , dated 26-04- 2019. The Petitioner and the Islamabad Club have assailed the judgments of the learned Ombudsperson and dismissal of the representation by the worthy President.
4. The learned counsel for the petitioner has contended that; no appeal was preferred by the complainant under section 6 of the Act of 2010; section 6 does not vest suo motu powers and, therefore, the proceedings were without lawful authority and jurisdiction; the inquiry report, dated 05-12-2017, had dealt with the entire matter in detail and had concluded that the allegations were without substance; the complaint was an afterthought because due to unsatisfactory performance of the complainant/Petitioner , the competent authority had decided against extension of the employment contract; there is nothing on record to even remotely suggest that the complainant had filed a complaint when the alleged acts were committed; the complaint was filed on 23-10-2017; the findings and conclusions of the learned Ombudsperson were based on mere presumptions; the learned Ombudsperson herself had acknowledged the acts of misconduct on part of the complainant.
5. The learned counsel who has appeared on behalf of the complainant has contended that the findings of the learned Ombudsperson are well reasoned and sustainable in law; in paragraph 29 of the impugned judgment, dated 19-09-2018, cogent reasons have been recorded; the representation filed by the Petitioner was also dismissed by the worthy President and order , dated 26-04-2019 is well reasoned and does not require interference.
6. The learned counsel who has appeared on behalf of the petitioner in W.P. No.81 9/2019 has contended that; the appointment of the Petitioner as member of the Federal Service Tribunal was against the law because he was found guilty of sexual harassment by the learned Ombudsperson and, therefore, he was disqualified from holding the of fice; since fine was imposed, therefore, he could not have been appointed nor allowed to complete his term.
7. The learned counsels have been heard and the perused with their able assistance.
8. The Respondent was employed on contract basis and the last extension was valid till 21-10-2017. It also appears from the record that the competent authority had decided against extension of the employment contract on the basis of unsatisfactory performance of the Respondent. She filed a complaint on 23-10-2017 i.e. after termination of her employment contract. She had alleged work related sexual harassment during the validity of her employment contract. There is nothing on record to show that the Respondent had raised the matter prior to filing the complaint. This crucial factum was acknowledged by the learned Ombudsperson vide the impugned findings, dated 19-09-2019. The learned Ombudsperson had erroneously concluded that the reported judgment of this Court titled Syed Mazhar Hussain and others v. President of the Islamic Republic of Pakistan and others [2018 MLD (Islamabad) 327] was distinguishable. It was, therefore, an admitted position that the Respondent had not filed any complaint while she was in service or when the cause of action had arisen. This Court has explicitly held in the aforementioned judgment as follows.- "The bare perusal of the above provisions show that the intention of the legislature was that only an employee who is in employment of an employer can prefer claim of sexual harassment either before the inquiry Committee or the?
Ombudsman i.e. respondent No.3. There is nothing in the Act which lays down to the contrary i.e. provides the remedy of complaint to an ex-employee in case of sexual harassment."
Moreover , it has also been held that an employee during validity of his/her employ ment has the option to prefer a complaint either to the Ombudsperson or the inquiry committee. In the case in hand, the learned Ombudsperson had fallen in error by concluding that the judgment of this Court was distinguishable.
9. It is noted that there is another crucial factor , which was not taken into consideration by the worthy President while deciding the representation i.e. no appeal was preferred by the Respondent under section 6 of the Act of 2010. Instead the learned Ombudsperson had treated the copy of inquiry report endorsed to her secretariat as an appeal. A plain reading of section 6 of the Act of 2010 unambiguously shows that the learned Ombudsperson was bereft of jurisdiction to exercise suo motu powers under section 6 of the Act of 2010.
10. In the case in hand, the Respondent had filed a complaint after her extended period of employment contract had expired. She did not file any complaint during the validity of her contractual employment. She also did not exercise her right of preferring an appeal under section 6 of the Act of 2010. A plain reading of the impugned findings of the learned Ombudsperson, dated 19-09-2018, shows that the conclusions are based on unsubstantiated presumptions and conjec tures. The learned Ombudsperson had also erred in concluding that the case of the Respondent was that of 'forced termination'. Moreover , the proceedings before the learned Ombudsperson were coram non judice and without lawful authority . It is settled law that when the law requires a thing to be done in a particular manner , it ought to be done in that manner alone and such dictate of law cannot be termed as technicality . Reliance is placed on the case titled 'Muhammad Anwar and others v. Mst. Ilyas Begum and others [PLD 2013 SC 255]. It is noted that imposition of penalties under the Act of 2010 has serious consequences and, therefore, the learned Ombudsperson was expected to have exercised utmost care. The penalties prescribed under the Act of 2010 cannot be imposed on the basis of unsubstantiated presumptions and conjectures as was done in the case in hand.
11. For the above reasons, Writ Petition No.1849/2019 titled 'Sikandar Ismail Khan v. Ms. Seemi Abbas & 2 others and Writ Petition No.2426/2019 'Administrator Islamabad Club v. Ms. Seemi Abbas & 2 others are allowed and consequently the impugned order , dated 26-04-2019 and the findings, dated 19-09-2018, are hereby set aside . The third constitutional petition i.e. Writ Petition No.819/2019 titled Abdur Rehman Alvi Advocate v.
Government of Pakistan through President of Pakistan & 4 others has thus become infructuous and is, therefore, accordingly dismissed.