2024 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, J.

The instant Constitutional Petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution'), carries the following prayer clause: "I. Issue an appropriate writ. II. Declare that the harassment complaint dated 13.09.2022 and summons dated 21.09.2022 and 28.09.2022 against the petitioner is illegal, unlawful, void ab initio mala fide, against the principle of natural justice and have no illegal effects on the right of the petitioner, Coram Non-Judice and Ultra-Vires the Constitution of the Islamic Republic of Pakistan, 1973 and the Balochistan Protection Against Harassment of Women at Workplace Act, 2016. III. Set aside the notification dated 28.09.2022 whereby respondent No.2 revised the order of the governor/chancellor by reducing the salary package of the petitioner. IV. Declare the explanations dated 20.05.2022, 29.06.2022 and 26.08.2022 are without jurisdiction, illegal, and unlawful and therefore void. V. Direct respondent No. 2 to include the petitioner's name in committees, the functioning of which cannot complete without the presence of and ex-officio member of the committee by virtue of the Balochistan Universities Act, 2022. VI. Restrain the respondents from adopting coercive measures against the petitioner. VII. Any other relief that this Hon'ble Court deems just and proper may also be granted."

2. Precise facts leading to filing of the instant petition are that the petitioner has been rendering her services as the pro-vice-chancellor at Sardar Bahadur Khan Women's University and was also assigned the acting charge of vice-chancellor vide notification dated 2nd September, 2021 after removal of respondent No. 2 from her office. It is case of the petitioner that the respondent No.2, after resuming the charge of vice-chancellor on the strength of judgment passed by this Court had developed personal grudge against the petitioner and started harassing her while revising her monthly salary, removing her from different committees, issuing continuous show-cause notices and summoning her in a false and baseless case of harassment filed by one Dr. Gul Ghutai, Chairperson, Commerce Department, SBK Women's University, Quetta.

3. After hearing the learned counsel for the parties and going through the record, particularly, the complaint filed by one Dr. Gul Ghutai under the provisions of "The Balochistan Protection Against Harassment of Women at Workplace Act, 2016" ("the Act of 2016") against the petitioner, we are of the considered view that the allegations levelled against the petitioner in the said complaint do not constitute an offence of harassment under the provisions of the Act of 2016 and the respondent No.2 as well as members of the Harassment Committee have failed to apply their mind while entertaining the complaint in question and summoning the petitioner. The question of harassment of women at workplace came under consideration before the Hon'ble Supreme Court in the case of Nadia Naz v. The President of Pakistan and others (PLD 2021 Supreme Court 784) wherein it was observed: "

21. While our version of the legislation to protect women at workplaces against harassment is titled as 'The Protection against Harassment of Women at the Workplace Act 2010', however, when the scheme of the enactment is carefully examined, its contents and application has been restricted to harassment of a purely of sexual orientation and nature. It must be noted that under the Pakistani legislation on the subject, not only in the Preamble but also in the title of the Act, the term 'harassment' is used and not sexual harassment', but contrarily to the apparent intent, the meaning of the term 'harassment' has been explicitly given a restrictive meaning under clause (h) of Section 2 of the Act, 2010. Meanwhile, other acts of harassment, as noted in para 13 above, cannot be taken cognizance by the Ombudsman, in view of the limitation of authority and jurisdiction, to punish the harassment of the kind defined under the Act, 2010 and in a manner as provided under section 4 ibid. To our great regret, all such acts of harassment that fall beyond the pale of restricted definition of actionable harassment under section 2(h) ibid; can neither be made cognizable or punishable by the Inquiry Committee and/or the Ombudsman, in view of the fetters placed under Article 12 of the Constitution of Pakistan, 1973. The act, demeanor, behavior, and/or conduct that has been made cognizable is of limited application and, has been nailed down in the definition clause of section 2(h) of the Act, 2010 and not as generically reflected either from Preamble or the title of the Act, 2010. The aggrieved person under the provisions of the Act, 2010 has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behavior, and/or conduct. Since the Act, 2010 itself limits the protection it offers to the harassment having sexual orientation, the Court is shackled to interpret it in line with its express charging clause (h) of section 2 of the Act, 2010. Any other interpretation advanced by this Court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of Constitution. There is no cavil to the proposition that the sexual conduct is cognizable under the provisions of the Act, 2010, however, as held by the President in its order, and as upheld through impugned judgment of the Islamabad High Court, the petitioner has failed to establish that the conduct on the part of respondents 4 and 5 actually amounted to sexual harassment within the contemplation of Act, 2010.

4. Considering the complaint in question on the touchstone of the above mentioned criteria, it does not contain any allegation of sexual orientation and nature. Any misdemeanor, behavior or conduct unbecoming of an employee or employer at workplace towards a fellow employee or employer, may it be generically classifiable harassment, is not actionable per-se, unless such behavior or conduct is shown to be inherently demonstrable of its 'sexual' nature.

5. The term 'harassment' which has been made actionable wrong under the Protection against Harassment of Women at the Workplace Act, 2010, enacted by the National Assembly, defines it as follows:- "(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."

6. Though the Act of 2016, enacted by the Provincial Assembly of Balochistan is ditto copy of the federal legislation i.e. the Act of 2010, however, departure has been made while defining the term of harassment in the following words: "2(j) "harassment" means any unwelcome sexual advance, request for sexual favors for other verbal or written communication or physical conduct of a sexual nature or sexually demanding attitudes, any kind of threats, blackmailing, mental and physical torture, attempt for defamation or defamation through modern techniques, 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. As a matter of fact, the Women Protection at Workplace Act, 2016 is a legislative measure aimed at providing a safe and harassment-free working environment for women and to prevent sexual harassment at workplaces, however, due to the novel definition of 'harassment' in the Act of 2016, the same is being misused and the case in hand is one the example. The said definition and its interpretation by the heads of some organizations is a serious matter because it undermines the intent of the legislation and has detrimental effects on both individuals and the overall workplace environment. There is a number of instances of misuse of the said law, however, the main cause is the novel definition of term 'harassment' where the words "any kind of threats, blackmailing, mental and physical torture, attempt for defamation or defamation through modern techniques" have been added.

8. It is also worth mentioning that under section 12 of the Act of 2016, the provisions of the Act are in addition to and not in derogation of any other law. The Act of 2016 is basically a myopic piece of legislation that focused only on a minute faction of harassment and it confines or limits its application to sexualized forms of harassment. While holding this view, we are fortified from the observations made by the Hon'ble Supreme Court in the above mentioned case of Nadia Naz in following words: "

13. Harassment, in all forms and manifestations, may it be based on race, gender, religion, disability, sexual orientation, age-related, an arrangement of quid pro quo, and/or sexual harassment etc. affects and violates the dignity of a person, as guaranteed under the Constitution of Pakistan, 1973. Even though anyone may be subject to sexual harassment, in a culture and society like Pakistan, women are the distressing majority of victims. Harassment in any society or organization is a testament to regressive behavior that creates an intimidating, hostile, degrading, humiliating, and offensive environment which has a devastating effect on any society or organization by adversely affecting its overall performance and development. The Act, 2010, rather than addressing issue of harassment in all its manifestation, as noted above, in a holistic manner, is a myopic piece of legislation that focused only on a minute faction of harassment. The Act, 2010 confines or limits its application to sexualized forms, including orientation of unwanted or unwelcome behavior, or conduct displayed by an accused person towards a victim in any organization. It may be observed that insulting modesty or causing sexual harassment at work place or public place etc. has been criminalized under Section 509 of the Pakistan Penal Code, 1860, which is punishable for a term which may extend to three years, or with fine up to five hundred thousand rupees, or both w. e.f. 02.02 2010. "

9. As has been observed here in above, the purpose and intentions behind legislating protection of women at workplace are rooted in promoting gender equality, ensuring safe and inclusive work environments, addressing disparities/discriminations and to create a fair and equitable work environment that recognizes and protects women's rights, contributes to their professional development. The petitioner, who also happened to be a female, has also a right to perform her duties as pro-vice chancellor in a safe and inclusive work environment. On the contrary, it seems that the petitioner has been made scape goat, harassed and discriminated merely on linguistic basis by a local inhabitant of Quetta. The perusal of complaint would show that it contains general allegations i.e. calling of complainant by petitioner in her office, treating her in allegedly undignified manner or giving verbal orders while on the contrary, very harsh, poor and contemptuous language that too against a teacher (pro-vice chancellor) has been used in the complaint. Similarly, the removal of the petitioner from several committees being pro-vice chancellor is also flat defiance of law and illegal. For the aforesaid reasons, the petition is allowed and summoning of the petitioner in the alleged complaint is hereby declared illegal, mala fide and void ab-intio. The explanations dated 20.05.2022, 29.06.2022 and 25.08.2022 having been issued without jurisdiction are void and the respondent No.2 is directed to include the petitioner's name in the committees in accordance with the provisions of Balochistan Universities Act, 2022. MQ/129/Bal. Petition allowe