Through the instant writ petition, the petitioner, Zeeshan Ali Khan, who is a Chief Executive Officer and co-founder of Zameen Media (Pvt.) Ltd., impugns the orders dated 20.03.2023 and 28.03.2023 passed by the Federal Ombudsman for Protection against Harassment of Women at the Workplace ("the Ombudsman"). Through order dated 20.03.2023, the Ombudsman issued notice to the petitioner with the direction to appear and submit a reply to the appeal filed by respondent No.2 (Hajrah Alamgir) against the inquiry report dated 18.02.2023. Vide order dated 28.03.2023, the Ombudsman restrained from taking any adverse action against respondent No.2 and directed the petitioner to appear in person on 03.04.2023.
2. The facts essential for the disposal of the instant petition are that on 17.01.2023, respondent No.2 submitted a complaint through email against the petitioner alleging harassment at his hands. The complaint was referred to a committee constituted under Section 3 of the Protection against Harassm ent of Women at the Workplace Act, 2010 ("the 2010 Act"). After respondent No.2 expressed her dissatisfaction with the composition of the said committee, the same was reconstituted. The inquiry committee, in its report dated 18.02.2023, concluded that a case for harassm ent have not been made out. After the issuance of the said inquiry report, respondent No.2 filed a complaint before the Ombudsman. Vide order dated 28.02.2023, the said complaint was dismissed as not maintainable on the ground that respondent No.2 had already elected to take her complaint before the inquiry committee, and that she could file an appeal under Section 6 of the 2010 Act against the findings of the inquiry committee. In the said order dated 28.02.2023, it is also mentioned that the petitioner's contention that the matter agitated in the complaint was an administrative matter and did not fall within the definition of harassment given in Section 2(h) of the 2010 Act "carries weight." After the dismissal of respondent No.2's complaint by the Ombudsman, respondent No.2 filed an appeal under Section 6 of the 2010 Act against the inquiry report dated 18.02.2023. It was in the appellate proceedings that the Ombudsman had passed the impugned orders dated 20.03.2023 and 28.03.2023.
3. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that an F.I.R. had been registered against respondent No.2 at the instance of Zameen Media (Pvt.) Ltd.; that the powers of the Ombudsman have been circumscribed by Section 10 of the 2010 Act; that the Ombudsman did not have power to suspend the proceedings in the F.I.R.; that the proceedings in the appeal before the Ombudsman were coram non-judice; and that once the Ombudsman had held, in her order dated 28.02.2023, that the petitioner's stance that respondent No.2's complaint pertains to an administrative matter and does not fall in the definition of harassm ent as given in Section 2(h) of the 2010 Act, the Ombudsman ought not to have proceeded with respondent No.2's complaint. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.
4. I have heard the contentions of the learned counsel for the petitioner and have perused the record with his able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraph 2 above and need not be recapitulated.
5. The documents on the record show that after the inquiry committee constituted by Zameen Media (Pvt.) Ltd. submitted its report dated 18.02.2023 exonerating the petitioner from the allegation of harassm ent levelled against him by respondent No.2, respondent No.2 submitted a complaint before the Ombudsman again alleging harassment against the petitioner. The said complaint was dismissed as not maintainable vide order dated 28.02.2023 on the ground that respondent No.2 had already elected to submit her complaint before the inquiry committee. Furthermore, it was held that respondent No.2 could have preferred an appeal against the findings of the inquiry committee before the Ombudsman under Section 6 of the 2010 Act. For the purposes of clarity, the operative part of the said order dated 28.02.2023 is reproduced herein below:- "Needless to explain the Complainant had option either to file complaint before the inquiry committee of the department or to this forum but she could not file the second complaint at this forum when her first complaint was pending before the departmental inquiry committee. In case she was aggrieved by decision of the competent authority/inquiry committee she could have preferred appeal within thirty days of the decision to the Ombudsman as required under Section 6 of the Protection against Harassment of Women at the Workplace Act, 2010. On this criteria the present complaint being a second complaint is not competent under Section 8 of the Act, 2010.
The present complaint is also hit by the principle of election which denotes where a party has an option to commence and follow an action before concurrent avenues, as long as a party does not avail of a remedy before a forum of competent jurisdiction all such remedies remain open to be invoked, however, once the election is made then the party may not be allowed to however and shop for one after another co-existent adjudication process."
6. Although in the said order dated 28.02.2023, it has been observed by the Ombudsman that the contention made on behalf of the petitioner that the matter was an administrative one and did not fall within the definition of harassm ent as given in Section 2(h) of the 2010 Act, "carries weight," such observation would not mean that respondent No.2's complaint submitted to the Ombudsman had been decided on merits. Even otherwise, since the Ombudsman had held that the complaint submitted by respondent No.2 was not maintainable as it fell outside the jurisdiction of the Ombudsman, the Ombudsman's observation regarding the petitioner's contention, would be of no legal consequence.
7. Indeed, Section 6(2) of the 2010 Act confers a right of appeal to a complainant aggrieved by the decision of the inquiry committee. The petitioner is at liberty to take all legal and factual objections to the appeal preferred by respondent No.2 against the inquiry committee's findings dated 18.02.2023.
8. As regards the contention of the learned counsel for the petitioner that Ombudsman could not suspend the proceedings in the F.I.R. registered against respondent No.2, I have gone through the impugned order dated 20.03.2023 and have noticed that the Ombudsman has simply recorded the contentions of the learned counsel for respondent No.2 but has not issued any injunctive order. The Ombudsman has been cautious to simply issue a notice to the petitioner on respondent No.2's appeal and her application for interim injunction. However, vide order dated 28.03.2023, the Ombudsman has observed that if any adverse action has been taken by the petitioner against respondent No.2 during the pendency of the appeal, it would amount to retaliation in terms of the provisions of the Protection against Harassment of Women at the Workplace (Amendment) Act, 2022. By virtue of the said amendment, the definition of the word "harassment," which now also includes the creation of a hostile or offensive work environment. The term "hostile environment" has also been defined in the said Act.
9. The appellate proceedings before the Ombudsman have not culminated in a final order. The petitioner has assailed two interlocutory orders passed by the Ombudsman. I do not find any jurisdictional infirmity in the said orders. Consequently, the instant petition is dismissed in limine.