MUHAMMAD ASIF, J. Through this single order, I intend to decide all the titled petitions as they are interlinked.
2. Through the instant writ petition, the petitioner has impugned the orders dated 11.04.2023 and 15.12.2023 passed by the Director (Legal-I) President Secretariat (Public) Aiwan-e-Saddar, Islamabad and Federal Ombudsman for Protection Against Harrasment of Women at Work Place, Islamabad, respectively, whereby the petition filed by the respondent No. 1 was allowed and appeal filed by the petitioner was dismissed.
3. The facts material to the adjudication of the present petition shall be considered at a subsequent stage in this judgment.
4. The learned counsel for the petitioner argued that the competent authority was obliged to pass the impugned order strictly in accordance with law laid down by the Hon'ble Supreme Court; that by virtue of the impugned order, the competent authority has deviated from the a law laid down by the Supreme Court of Pakistan, which was binding upon all executive and judicial authorities under Article 189 &190 of the Constitution of Islamic Republic of Pakistan, 1973, rendering the impugned order nullity in the eyes of law; that onus to prove the charges was on the complainant/prosecution rather than on the Petitioner to prove his innocence; that the impugned order imposing major penalty despite the fact that there was no evidence available on the record as held by the Federal Ombudsman, is against the principles of natural justice; that an individual, who has not committed any kind of misconduct or negligence whatsoever, should not suffer due to fault of others; that in the circumstances of the case the impugned order passed by the respondents deserve to be set aside; that moving a complaint right after a dismissal order passed by the competent authority, is sufficient to show malice on the part of Respondent, which fact has totally been ignored, and that the impugned orders show a colorful exercise of discretion, which analogy is not sustainable under the law. Therefore, the petition may be allowed.
5. The learned counsel for the Respondent No. 1, repelled the above submissions and argued that the both the orders passed by the Director (Legal-I) President Secretariat (Public) Aiwan-e-Saddar, Islamabad and Federal Ombudsman for Protection Against Harassment of Women at Work Place, Islamabad, respectively are as per law, therefore, the petition is liable to be dismissed.
6. I have heard the learned counsel for the parties and gone through the record with their able assistance.
7. Perusal of the available record reveals that the Respondent No. 1 was appointed as an Officer Grade-II in Zarai Taraqiati Bank Limited ("ZTBL") and was subsequently posted at the Tatly Aali Branch, District Gujranwala. Upon the assumption of charge by the petitioner as the immediate Senior Officer to the Respondent No. 1, in due course of official interactions and supervisory observations, found the Respondent No. 1 to be consistently inefficient in the performance of her duties, lacking in discipline, frequently unpunctual, and generally a source of disruption within the organizational environment. Moreover, the Respondent No. 1 was allegedly found involved in various irregular and potentially unlawful activities, which were reported by the petitioner to the competent authorities. Acting upon the said complaint and after conducting necessary inquiries in accordance with the applicable rules and regulations, the competent authority of ZTBL terminated the services of the Respondent No. 1 on account of misconduct and breach of service discipline.
Subsequent to the said termination, the Respondent No. 1, instituted a complaint under Section 8 of the Protection Against Harassm ent of Women at the Workplace Act, 2010, before the learned Ombudsman, whereupon a major penalty of removal from service with fine of Rs. 500,000/- under the said Act, was imposed on Petitioner and he was removed from service. Feeling aggrieved and dissatisfied by the said order, the Petitioner preferred a representation before the Respondent No. 3 under the provisions of the governing statute and service rules. However, the said representation was also dismissed, and the penalty was enhanced to Rs. 600,000/-.
8. In the present case, the Petitioner was removed from service vide order dated 15.12.2021, passed by the Federal Ombudsman for protection against Harrasment of Women at the Workplace, Islamabad relevant paragraphs of which, are reproduced as under:- "As a result of the inquiry conducted by this forum in the instant matter as per rules of the Act, 2010, I have reached to the conclusion that the accused, beyond any doubt, is guilty of sexual harassm ent of the complainant in terms of Section 2 (h) of the Act 2010 and as such he is liable to be awarded punishment in terms of section 4(4)(ii)(e) of the Act, 2010i.e. Major Penalty.
Since the complainant has been terminated from service in utter violation of the law and rules i.e conducting of regular inquiry against her and providing no opportunity of hearing to her, the termination order is quite illegal and unlawful and cannot stand intact. In the given circumstances it will be deemed as if no order of termination made or exists in the field and the Complainant is still bank employee like the one she was at the time of so called and nullity termination order. In view of this, the complainant will be entitled to all her benefits till today.
Consequent upon what has been discussed above, I recommended for the Accused the penalty of his dismissal from service alongwith fine of Rs. 5 lac which shall be payable to the complainant as compensation for the hardships she faced at the hands of the Accused. This decision be conveyed to both the parties as well as the management of the concerned organization for implementation of the orders in terms of section 8 sub section 5 of the Act, 2010 under intimation to the Registrar, FOSPAH within 7 days of receipt of the order."
9. The Respondent No. 1 in her complaint dated 26.03.2019, stated that during late hours, the Petitioner called her to his room, wherein he allegedly engaged her in an objectionable and inappropriate conversation. On resistance by the Respondent No. 1, the Petitioner became agitated and allegedly used abusive and derogatory language towards her. Subsequently, on 08.04.2019 at about 5:00 pm, Respondent No. 1 was called to receive her termination letter. Thereafter, on 09.04.2019, when Respondent No. 1 visited the bank premises to collect her personal belongings, the Petitioner held her arm and forcibly escorted her to his room, where he allegedly touched her in an inappropriate and unwelcome manner. In consequence of this alleged incident that Respondent No. 1 submitted a formal complaint of sexual harassment against the Petitioner.
10. The narrative put forth by Respondent No. 1, in her complaint raises grave and substantial doubts regarding the veracity of the allegations of sexual harassment purportedly committed by the Petitioner. It is a matter of record that the alleged incident of harassment is claimed to have occurred on 26.03.2019. However, Respondent No. 1, did not lodge any complaint, whether oral or written, before any Departmental Authority or Superior Officer from the date of alleged occurrence till her termination from service on 08.04.2019.
11. It is important to note that despite having ample opportunity and access to appropriate mechanisms for redressal, Respondent No. 1 remained silent for a continuous period of 14 (fourteen) days, following the alleged occurrence. No plausible explanation, justification, or compelling reason has been furnished by Respondent No. 1 for such inordinate and unexplained delay in reporting the alleged misconduct. This silence, coupled with the timing of the disclosure, coinciding precisely with the service of the termination order, casts serious doubt on the authenticity and credibility of the allegations made against the Petitioner.
12. Furthermore, Respondent No. 1 has failed to demonstrate any imminent threat, coercion, or compelling circumstance that might have inhibited her from reporting the alleged incident in a timely manner. The unexplained delay not only undermines the credibility of the complaint but also is against the settled principles of natural justice, fairness, and prompt reporting in cases involving such serious allegations. The belated disclosure raises a reasonable apprehension that the respondent No. 1 may have been motivated by extraneous considerations or personal grudge, particularly in light of the adverse employment action taken against her. The bank is a public dealing office and multiple individuals work there, but when the incident took place no one saw the incident and the respondent No. 1 even not produced any bank official in her favour and even not produced any one in her defence and the learned ombudsman, while ignoring all the material facts passed the order which is not sustainable under the law.
13. The respondent No. 1 and petitioner were employee at ZTBL, which is a public office regularly engaged in customer dealings and day-to-day commercial transactions, wherein numerous employees, staff members, and members of the public are ordinarily present during working hours.
The said premises are characterized by a continuous presence of multiple individuals, both employees and customers alike, thereby making it inherently improbable for any act of misconduct particularly of the nature alleged to go unnoticed or unwitnessed. However, despite the alleged incident having purportedly taken place within such a public and populated office environment, Respondent No. 1 has conspicuously failed to produce any witness, colleague, or bank official in support of her allegations. There has been no attempt on the part of Respondent No. 1 to call or examine any individual, who may have been present at or around the time and place of the alleged occurrence, nor has any affidavit or corroborative statement been placed on record from any person to substantiate her version of events. In fact, no employee or officer of the bank has come forward, either voluntarily or upon being called, to support the allegations levelled by the Respondent No. 1.
14. In complete disregard of these material deficiencies in the evidence, the learned Ombudsman proceeded to pass an order solely on the basis of the uncorroborated and delayed allegations made by Respondent No. 1, without taking into account the absence of independent witnesses, lack of contemporaneous complaints, and the public nature of the alleged place of incident. The learned Ombudsman failed to appreciate the crucial fact that the complaint is not supported by any independent or documentary evidence and is based solely on the complainant's ipse dixit.
15. In the present era, wherein security and surveillance have become essential components of workplace safety and accountability, it is a well-established and widely practiced norm that security cameras (CCTV) are installed in almost every public and private office, including institutions such as banks, for the dual purposes of maintaining vigilance and ensuring the protection of both personnel and property. These surveillance systems are routinely relied upon in official investigations, internal inquiries, and disciplinary proceedings, especially in cases involving allegations of misconduct.
16. Despite this prevailing practice, it is noteworthy that in the present case, Respondent No. 1 has not produced any CCTV footage or video recording in support of her allegations. No effort appears to have been made by Respondent No. 1 to obtain, request, or preserve any surveillance footage from the alleged date, time, and location of the incident, which purportedly took place within the bank premises an area where surveillance cameras are presumed to be installed as per standard operational protocol.
17. The non-production of such potentially crucial evidence especially in a case involving serious allegations of physical misconduct raises a serious question regarding the credibility and authenticity of the claims made. The absence of video evidence, which could have either substantiated or disproved the allegations, significantly weakens the case of Respondent No. 1 and gives rise to an adverse inference under the applicable rules of evidence.
18. Moreover, the learned Ombudsman failed to take judicial notice of this important omission and did not call for any CCTV, which could have assisted in arriving at a fair and just determination of facts. This oversight amounts to a failure in considering material evidence that was reasonably available and relevant to the dispute at hand. the omission to produce CCTV footage or any video evidence, in a workplace that is reasonably expected to be under surveillance, further undermines the credibility of the complaint and renders the findings of the learned Ombudsman legally unsustainable.
19. With regard to the issue concerning the reinstatement of Respondent No. 1, the same cannot be considered in isolation and must be examined in light of the applicable service rules, regulations, and administrative policies governing the employment framework of Zarai Taraqiati Bank Limited (ZTBL), under which the employment status of the Petitioner is regulated.
20. It is of paramount importance to carefully peruse and examine the contents of the letter dated 08.04.2019, as the entirety of the present case hinges upon, and derives its foundational basis from, the assertions, representations, and averments contained therein. The said letter constitutes the principal documentary evidence upon which the claims and defenses of the respective parties rest, and as such, any adjudication, consideration, or determination of the issues in dispute cannot be justly or adequately undertaken without a thorough and meticulous scrutiny of the said correspondence. Which is reproduced as under:-
21. As per the contents of the termination letter issued to the Respondent No. 1, she was appointed in Zarai Taraqiati Bank Limited (ZTBL) as an Officer Grade-II under the ZTBL Staff Regulations, 2005 ("S.R.-2005"), with effect from 01.07.2018. Her appointment was expressly subject to a probationary period of one year, commencing from the said date of appointment. It is a settled principle of service law, and also clearly stipulated under Regulation 17 of the S.R.-2005, that during the probationary period, the services of an employee may be terminated at any time, with or without assigning any reason, if the competent authority is not satisfied with the employee's performance, conduct, or suitability for continued employment. The probationary period is essentially a period of assessm ent, both in terms of performance and behavioural suitability within the institutional framework of the Bank.
22. In accordance with the said Rules and in exercise of its powers under the applicable service regulations, the competent authority of ZTBL terminated the services of the Petitioner on 08.04.2019, while she was still serving within the prescribed period of probation. The said termination was carried out in compliance with the terms and conditions laid down in the letter of appointment and in consonance with the provisions of S.R.-2005, without any allegation of misconduct or punitive stigma attached to the order of termination. The Respondent No. 1, being a probationer at the relevant time, did not acquire any vested or indefeasible right to continue in service beyond the probationary period, unless and until she was expressly confirmed in writing by the competent authority. Therefore, her termination, being within the legal framework and effected during the subsistence of her probation, is well within the legal competence of the employer and does not suffer from any legal infirmity.
23. It is pertinent to mention here that the Respondent No. 2, while passing the impugned order, has grossly misinterpreted and misapplied the powers conferred upon him under Section 10 of the Protection Against Harassment of Women at the Workplace Act, 2010 ("the Act"). The said provision confers limited and specific adjudicatory powers upon the competent authority or Ombudsman, which are required to be exercised strictly within the confines of the statute and in accordance with the principles of natural justice, procedural fairness, and established legal norms.
Section 10 of the Act delineates the scope of authority available to the Ombudsman in determining complaints of harassm ent as defined under Section 2(h) of the Act. It requires the Ombudsman to evaluate the evidence, conduct hearings, and pass a reasoned and well-founded order based on credible material on record. However, in the present case, Respondent No. 2 has exercised powers in excess of the jurisdiction contemplated under the said provision by proceeding to adjudicate matters falling outside the statutory definition of "harassment" or by issuing directions that are beyond the scope and intention of the law.
24. Moreover, the impugned order reflects a mechanical and one-sided application of mind, whereby Respondent No. 2 appears to have acted merely on the basis of uncorroborated allegations made by Respondent No. 1, without proper appraisal of the evidentiary record, without adherence to procedural safeguards, and in blatant disregard of material contradictions and absence of supporting witnesses or documentary evidence. This constitutes a serious jurisdictional error and amounts to an arbitrary exercise of power in contravention of the legislative intent behind Section 10.
25. The role of the Ombudsman is quasi-judicial in nature, and the exercise of such powers mandates impartiality, legal precision, and a strict interpretation of statutory limits. In deviating from these standards, Respondent No. 2 has not only misconstrued the legal framework of the Act but has also rendered an order which is legally unsustainable on the grounds of illegality, procedural impropriety, and jurisdictional overreach. None of the provision of the Act, 2010 empowers the Federal Ombudsman to reinstate an aggrieved person back into service.
26. The Hon'ble Supreme Court of Pakistan in the case of Nadia Naz v. The President of Islamic Republic of Pakistan, President House, Islamabad & others in (Civil Petition No. 4570 of 2019), it has been held that:- "In case the complaint against actionable harassment is made directly to the Ombudsman, the procedure to carry out inquiry into complaint and the powers of the Ombudsman are given under Sections 8 and 10 respectively. None of the provisions of the Act, 2010 empowers the Federal Ombudsman to reinstate an aggrieved person back into service. Therefore, the decision of the President, as maintained through impugned judgment of the Islamabad High Court, reversing and setting aside the order and direction of the Federal Ombudsman to reinstate the petitioner is unexceptionable and calls for no interference. It may be observed that the scheme of the Act, the Federal Ombudsman has no jurisdiction to enquire into and give findings as regard to the disciplinary proceeding against an employee of the Organization, as disciplinary matter fell beyond the realm of the authority and jurisdiction of Federal Ombudsman under the Act, of 2010, and departmental proceeding and action taken thereunder may be agitated before the appropriate forum, may it be civil Court under its plenary jurisdiction, Writ Jurisdiction and or appropriate Service Tribunal depending on legal status of employee and employer as the case may be."
27. The letter dated 08.04.2019 is not merely ancillary or collateral in nature, but rather, it is central and integral to the factual matrix and legal construct of the present proceedings. Accordingly, the learned Court/Tribunal/Authority was required to accord due and detailed attention to the said document, as the same is indispensable for a just and proper adjudication of the matter at hand. It is a settled principle of service jurisprudence that reinstatement is not an automatic consequence of a complaint or grievance being raised by an employee, particularly in cases involving disciplinary proceedings, allegations of misconduct, or termination from service. In the present case, any consideration of reinstatement of Respondent No. 1 must be assessed strictly in accordance with the provisions contained in the ZTBL Staff Service Rules, as well as any other relevant administrative instructions, circulars, or internal guidelines issued by the competent authority of the Bank. The employment relationship between the Bank and its employees, including Respondent No. 1, is governed by a codified set of service conditions, which delineate the grounds for termination, the procedure for redressal of grievances, and the manner in which disciplinary and administrative actions are to be undertaken. Unless it is conclusively established that the termination was contrary to the prescribed procedure or violative of principles of natural justice, reinstatement cannot be claimed as a matter of right.
28. Furthermore, any decision regarding reinstatement must also have been taken into account the operational requirements of the Bank, the conduct and antecedents of the employee concerned, and whether the employment environment remains conducive for such reinstatement. In the present matter, no specific provision of the ZTBL rules has been cited by Respondent No. 1 that would render her entitled to reinstatement as a matter of legal entitlement. Therefore, before any determination can be made with respect to reinstatement, it is imperative to conduct a thorough and objective evaluation of the relevant service rules, the findings of the competent authority at the time of termination, and the role/status of the Petitioner under such framework. Any direction for reinstatement issued without due regard to the governing service rules and without following due process would not only be legally untenable but would also amount to unwarranted interference in the Bank's internal administrative autonomy.
29. In view of the foregoing, the Impugned Orders passed by the Director (Legal-I), President's Secretariat (Public) Aiwan-e-Saddar, Islamabad and Federal Ombudsman for Protection Against Harassm ent of Women at Workplace, Islamabad, dated 11.04.2023 and 15.12.2021, respectively, are hereby set aside. Consequently, the writ petition No. 1387 of 2023 (Tariq Mehmood v. Shazia Munir and others), Writ Petition No. 1548 of 2023 (Zarai Taraqiati Bank Limited v. President's Secretariat (Public) Aiwan-e-Saddar and others) are allowed and Writ Petition No. 1811/2019 (Shazia Munir v. Zarai Taraqiati Bank Limited and other) is dismissed. The respondent No. 4 is directed to reinstate the petitioner (Tariq Mehmood) with all back benefits from the date of his removal forthwith. Copy of the compliance report shall be submitted to the Additional Registrar (Judicial) of this Court.