2022 PLP 714 (MLD)

SHAHID KARIM, J.

The only question involved in this petition is whether the Ombudsperson appointed under the Protection Against Harassment of Women at the Workplace Act, 2010 could have unilaterally and without any reasons reduced the penalty imposed upon the respondent No.2.

2. An inquiry was conducted by the petitioner Bank on the complaint of respondents Nos.3 and 4 and an inquiry committee was constituted which after providing opportunity to all the parties concluded that the charges of sexual harassment against the respondent No.2 had been brought home and recommended the penalty of compulsory retirement from the bank. The findings were upheld by the Ombudsperson in the following words: "The appellant Naeem Ahmed Siddiqui could not prove his innocence before the Inquiry Committee as well as before this forum. The main contentions of the appellant are that the inquiry committee was biased, he was condemned unheard and the Competent Authority has not provided him opportunity of personal hearing before imposition of penalty but the record shows that the appellant was given ample opportunity to defend himself but he could not prove his innocence. His other plea is that the inquiry Committee was partial but to my mind his contention at this appeal stage has no weightage as if he had any such apprehension regarding biasness of the inquiry committee, he should have raised this point during inquiry proceedings before inquiry committee but he did not do so which makes his stance baseless. Further, as per the provisions of the Act, ibid, the Competent Authority was required to implement the recommendation of the inquiry committee so there is no question of personal hearing before imposition of penalty, thereafter appellant's plea that he was not given opportunity of personal hearing has no force. I have not found any force in the averments made by the appellant in the instant appeal nor any illegality in the inquiry proceedings and order passed by the Competent Authority. However, the quantum of punishment (compulsory retirement) does not commensurate with the guilt; hence order of competent authority is modified and Penalty of One Step demotion as defined in section 4(4)(ii)(a) is awarded to Naeem Ahmad Siddiqui."

3. It can be seen from a reading of (he paragraph reproduced above that the Ombudsperson agreed with the findings of the inquiry committee regarding the guilt of the respondent No.2 and proceeded to therefore dismiss the appeal. However, at the end and without any reasonable cause reduced, the penalty of compulsory retirement imposed by the committee to penalty of one step demotion.

4. There is no provision in the Act of 2010 which empowers the Ombudsperson to reduce the penalty without reasonable cause and in case the discretion has to be exercised it must be based on proper and rational grounds by reference to the powers conferred upon the Ombudsperson while deciding an appeal. In ease the Ombudsperson seeks to vary or modify the decision, it must be done after concluding that some shortcomings had crept in the findings of the inquiry committee which entailed reduction of the penalty. Only upon such a finding having been returned the Ombudsperson as the appellate authority may award any of the penalties given in section 4(4) and thereby to vary or modify the decision to that extent. Once it had been held by the Ombudsperson that there was no infirmity or illegality in the conclusion drawn by the inquiry committee, there was no power left in the Ombudsperson to reduce the penalty and thereby to modify the decision. More particularly, in the instant case, it has been done without assigning any reasons and merely by holding that the penalty did not comport with the guilt. The exercise of discretion by the Ombudsperson in this manner impinges upon the rights of the respondents Nos.3 and 4 to have been treated fairly. Pertinently, the respondent No.2 has not challenged the findings of the Ombudsperson regarding the concurrence with the inquiry committee on the merits of the complaint.

5. In view or the above, this petition is allowed. The impugned order passed by the Ombudsperson to the extent of reduction in the penalty is hereby set aside and the order of the inquiry committee to that extent is restored. SA/B-2/L Petition allowed.