MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition the petitioner, Sher Bahadar, who is serving as Admin Officer in the National Institute of Pakistan Studies ("NIPS"), Quaid-e-Azam University ("QAU"), Islamabad, impugns order dated 13.04.2022, passed by the President of Pakistan on the representation filed by respondent No.3 against the order dated 30.06.2021 passed by the Office of the Federal Ombudsman for Protection against Harassment of Women at the Workplace ("the Ombudsman"). Vide said order dated 30.06.2021, the Ombudsman had rejected respondent No.3's complaint on the ground that she could avail the remedy of an appeal under Section 6 of the Protection against Harassm ent of Women at the Workplace Act, 2010 ("the 2010 Act"), and that her complaint contained no allegation of "harassment" as defined in Section 2(h) of the 2010 Act.
Vide impugned order dated 13.04.2022, the President of Pakistan allowed respondent No.3's representation against the Ombudsman's said order dated 30.06.2021 and remanded the matter to the Ombudsman with the direction to afford an opportunity to the parties to produce evidence and also afford them a right of a hearing.
2. Learned counsel for the petitioner drew the attention of the Court to the complaint dated 07.12.2020 submitted by respondent No.3 to the Ombudsman and submitted that it contains no allegation of either sexual harassm ent or discrimination at the hands of the petitioner; and that even if the definition of the term "harassment" as amended by the Protection against Harassment of Women at the Workplace (Amendment) Act, 2022 is taken into consideration, respondent No.3's case did not fall within the jurisdiction of the Ombudsman. Learned counsel for the petitioner prayed for the writ petition to be allowed.
3. On the other hand, learned counsel for respondent No.3 submitted that respondent No.3's complaint dated 07.12.2020 to the Ombudsman does make out a case of "harassment" as originally defined in the 2010 Act; that the President of Pakistan had correctly held that respondent No.3 should be given an opportunity to adduce evidence in order to prove that the petitioner had harassed her; that in her complaint, respondent No.3 had mentioned that the petitioner had the Intention to harass" her; that she had also stated that the petitioner had an "immoral attitude"; that respondent No.3 had also alleged that the petitioner had mentally tortured and harassed her; and that respondent No.3 ought to be given an opportunity to prove the allegations of harassment against the petitioner. Learned counsel for respondent No.3 prayed for the writ petition to be dismissed.
4. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
5. The record shows that on 07.12.2020, respondent No.3 submitted a complaint again, the petitioner to the Ombudsman. In the said complaint, respondent No.3 had prayed for a direction to be issued to the petitioner to refrain from harassing and threatening her so that a safe environment is provided to her at the workplace. She had also prayed for the grant of a No Objection Certificate ("NOC") so that she could undertake her Ph.D. She had also asked for leave on half pay for a period of five months to complete her Ph.D. with effect from 21.09.2020 to 10.02.2021.
6. The definition of the word "harassment" in Section 2(h) of the 2010 Act, prior to its amendment through Protection against Harassm ent of Women at the Workplace (Amendment) Act, 2022 ("the 2022 Act"), reads thus:- "(h) "harassment" means any unwelcome sexual advance, request for sexual favors 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."
7. When respondent No.3 filed her complaint dated 07.12.2020, the definition of the word "harassm ent" had not been amended. Rule 5(1)(a) of the Protection against Harassment of Women at the Workplace (Filing and Disposal of Complaints) Rules, 2013 ("the 2013 Rules") requires a complaint to contain a comprehensive statement of all facts with all necessary details relating to an incident of harassm ent at the workplace. Requiring complainants to provide specific details in their harassm ent complaints is crucial for ensuring a fair and thorough investigation. It helps protect the rights of both the complainant and the accused leading to more effective and just resolution. Since the very filing of a complaint before the Ombudsman under the 2010 Act entails a serious impact and stigma on the accused, it is essential that the complaint refers to specific details of harassm ent against the accused and not accusation of a generalized nature. The purpose behind Rule 5(1)(a) of the 2013 Rules is to create a balance between protecting victims of harassm ent and preventing false accusations.
8. In order to determine whether respondent No.3's complaint was compliant with the requirements of Rule 5(1)(a) ibid, the same needs to be examined in order to determine whether it contains all the necessary details regarding the allegation of "harassment" against the petitioner. In her complaint, respondent No.3 alleged that the petitioner, in his capacity as Administrative Officer, NIPS, QAU had torn her application for the issuance of an NOC so that she could not undertake Ph.D. in Pakistan Studies. Furthermore, she alleged that a lunch party was arranged for the staff of NIPS for which she had paid a huge amount as per the petitioner's wish; that the petitioner was "opposing and creating propaganda" against respondent No.3; that respondent No.3 dropped out of the First Semester due to the petitioner's "immoral attitude and more specifically non-issuance of NOC"; that the petitioner had directed respondent No.3 to attend office on daily basis "with intention to harass" her and had circulated such directions in a WhatsApp Group of NIPS's staff; and that the petitioner had mentally tortured and harassed her.
9. Perusal of respondent No.3's complaint shows that it does not contain a comprehensive statement of all facts with all necessary details relating to any incident of "harassment" as defined in Section 2(h) of the 2010 Act. Respondent No.3's accusations against the petitioner are of a generalized nature and lack specificity so as to identify the incidence of "harassment." Respondent No.3 had also filed a complaint against the petitioner to the Vice Chancellor of QAU. On such complaint, an inquiry was conducted. It ought to be borne in mind that the said complaint was not a complaint as envisaged by Section 4 of the 2010 Act which is to be filed before an Inquiry Committee constituted under Section 3 of the said Act. The recommendations of the Committee constituted by the Vice Chancellor, QAU were that respondent No.3 be allowed to proceed for her Ph.D. studies program and for this purpose, necessary permission may be granted to her. It was also recommended that the petitioner could not hold charge of two offices simultaneously.
10. Having gone through the contents of respondent No.3's complaint dated 07.12.2020 and the recommendations of the Inquiry Committee constituted by the Vice Chancellor, QAU, I would tend to agree with the Ombudsman's view in her order dated 30.06.2021 that the contents of the complaint do not suggest or support any conduct or act or sexual harassment by the petitioner against respondent No.3. The Ombudsman is also correct in coming to the conclusion that the complaint appears to be revolving around administrative issues regarding issuance of an NOC permitting respondent No.3 to undertake a Ph.D. in Pakistan Studies.
11. It is the requirement of Rule 5(1)(a) of the 2013 Rules which have been made by the Federal Government in exercise of the powers conferred by Section 13 of the 2010 Act that the complaint is to contain a comprehensive statement of all facts with all necessary details relating to an incident of harassm ent at the workplace. The President of Pakistan appears to be cognizant of the fact that the complaint dated 07.12.2020 submitted by respondent No.3 fell short of the requirement of Rule 5(1)(a) and in order to overcome this lacuna, the President of Pakistan directed that she be allowed to lead evidence. It appears that the President of Pakistan was not cognizant of the fact that respondent No.3 had submitted her affidavit-in-evidence which was on the same lines as her complaint. The Ombudsman, after taking into consideration respondent No.3's complaint as well as her affidavit-in-evidence, allowed the petitioner's application for the dismissal of the complaint on the ground that no case of sexual harassment had been made against him.
12. This Court vide unreported order dated 30.07.2020 passed in Writ Petition No.2050/2020 titled Anees R. Syed v. Jamshed Munawar and Rabia Jahangir and others upheld the concurrent orders passed by the Ombudsman and the President of Pakistan rejecting a complaint solely on the ground that it did not contain an allegation of 'harassment-as defined in Section 2(h) of the 2010 Act. Similarly, this Court in the unreported order dated 11.11.2019 passed in Writ Petition No.2653/2019 titled Arshad Malik v. Federal Ombudsman for Protection against Harassment of Women at Workplace, held as follows:- "6. ... I have gone through respondent No.2's complaint filed before respondent No.1 and do not find any allegation of "harassmert" as defined in Section 2(h) of the 2010 Act against the petitioner.
Although in the said complaint, respondent No.2 has levelled allegations of harassment against Aamir Bashir, General Manager but the allegations against him are not of "harassment" as defined in section 2(h) of the said Act. Under the provisions of the 2010 Act, an inquiry by the inquiry committee or the Ombudsperson can only be against the person against whom the complainant makes allegation of "harassment" as defined in section 2(h) of the said Act, and none other.
Therefore, I am of the view that respondent No.1 erred by dismissing the petitioner's application for the deletion of his name from the array of the respondents in respondent No.2's complaint before respondent No.1."
13. It would be instructive to make reference to the judgment in the case of Shahina Masood v.
Federal Ombudsman Secretariat for Protection Against Harassment of Women at Workplace and 2 others (2020 PLC (C.S.) 186) wherein this Court quashed the proceedings before the Ombudsman on the ground that the complaint did not contain an allegation of "harassment" as defined in Section 2(h) of the 2010 Act. Paragraph 10 of the said report is reproduced herein below: "10. When the provisions of the Act of 2010 are read as a whole, it unambiguously shows that the public office of the Ombudsman has been established with a specific object and purpose i.e to protect women against harassment as defined ibid and not merely harassment at workplace as understood in its ordinary dictionary meaning. When the definition of a particular expression has been given in a statute then its ordinary dictionary meaning becomes irrelevant nor can it be considered. The legislature is not expected to use an expression in a statute unnecessarily. If an enactment has defined an expression then it has to be construed by confining the interpretation solely to the language used therein. The purpose of a definition clause is to give certainty to the expression defined. The definition may either be extensive or restricted and exhaustive. It is extensive when the phrase. 'includes' is used and exhaustive when it explicitly states what an expression 'means'. The expression harassment has been defined in section 2(h) of the Act of 2010 which has been reproduced above. The definition is exhaustive and not extensive. It explicitly refers to various phrases such as "unwelcome sexual advance", "request for sexual favours", "physical conduct of a sexual nature". "sexually demeaning attitudes". The later portion of the definition i.e "other verbal or written communications 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 with such a request' cannot be read in isolation. It inevitably has a nexus with the nature of acts referred to in the earlier part of the exhaustive definition. The act, conduct or attitude essentially has to be sexual in nature to be covered under the definition of 'harassment' for the purposes of the Act of 2010. As an adjective, the expression sexual is related to 'the instincts, physiological processes and with physical attraction or intimate physical contact between two individuals'. It is, therefore, obvious that a gesture made towards another person with the intention of gaining sexual gratification would fall within the definition of 'harassment' in the context of the Act of 2010. For physical conduct to attract the consequences described in the Act of 2010 it has to be of a sexual nature. The legislature, through unambiguous language, has defined the expression 'harassment' and its exhaustive meaning has been confined to acts, advances, requests, attitudes, conduct etc which are of a sexual nature. Depending on the facts and circumstances, harassment for the purposes of the Act of 2010 can be of different forms, verbal, non verbal or physical. The most crucial ingredient for determining jurisdiction of the Ombudsman is that the conduct, attitude or act etc complained of must be of sexual nature and the other factors mentioned in section 2(h) are also in existence. The legislature has obviously not intended to extend the scope of the Act of 2010 to the expression 'harassment' as it is understood in its ordinary sense explained in the dictionaries."
14. As mentioned above, Section 2(h) of the 2010 Act was amended vide the Act of 2022 by virtue of which the definition of the word "harassment" has been widened. After the said amendment, in addition to the definition of the word "harassment" in Section 2(h) of the 2010 as originally enacted, "harassm ent" also means "discrimination on basis of gender, which may or may not be sexual in nature, but which may embody a discriminatory and prejudicial mind-set or notion, resulting in discriminatory behaviour on basis of gender against the complainant."
15. The Hon'ble Supreme Court, in the case of Nadia Naz v. President of Islamic Republic of Pakistan (PLD 2023 SC 588), after observing that the Amendment Act, 2022 is to have prospective effect and after reference to case law, conventions and treaties, held that sexual harassment would include a form of sex-based discrimination which hinders equal opportunity for employment performance and advancement of women. Furthermore, in paragraph 9 of the said report, it was held as follows:- "Sexual harassment at the workplace means that the presence of women at the workplace triggers this gender-based harassment, which in turn undermines a women's right to public life, her right to dignity and most important, her basic right to be treated equal. Sexual harassment compromises these rights of a woman which entails being economically and financially independent and being able to make independent decision and more importantly to be considered as a productive member of society."
16. Respondent No.3, in her complaint, did not allege gender based discrimination against the petitioner. In other words, she did not allege that the petitioner's refusal to issue an NOC to respondent No.3 was simply because she happens to be a woman. At no material stage did respondent No.3 apply to amend her complaint. What the Ombudsman is required to do is to examine the contents of the complaint in order to determine whether it contains allegations of harassm ent which squarely falls within the meaning of that word as defined in Section 2(h) of the 2010 Act and as interpreted in the judgment reported as Nadia Naz (supra). If this threshold is not satisfied, the Ombudsman ought to reject the complaint without further ado. The purpose of recording of evidence is to prove the specific allegation of harassment made in the complaint but not to give an opportunity for making allegations absent from the complaint.
17. In view of the above, the instant petition is allowed and the order dated 13.04.2022 passed by the President of Pakistan is set-aside, respondent No.3's representation before the President of Pakistan shall be deemed to be pending and shall be decided in accordance with the law. There shall be no order as to costs.