P L D 2026 Islamabad 72 (PLP)

BABAR SATTAR, J.

The petitioner has impugned a show-cause notice ( SCN ) dated 27.07.2023 issued in terms of Rules 2,3 and 9 of the Civil Servants (Efficiency and Discipline) Rules, 2020 ( E&D Rules ) along with a charge sheet dated 21.10.2022.

2. The learned counsel for the petitioner submitted that the subject-matter of the inquiry relates to a complaint of sexual harassment made by an employee of the Consulate General of Pakistan, Barcelona, against the petitioner, who was Consul General at the relevant time. He submitted that based on the complaint, the Ministry of Foreign Affairs initiated proceedings under the E&D Rules, and after a fact finding inquiry the impugned SCN was issued. He submitted that respondent No.4 simultaneously also filed a complaint before the Ombudsman for Protection Against Harassment of Women at the Workplace ( Ombudsman ) under the Protection against Harassment of Women at the Workplace Act, 2010 ("Harassment Act") and proceedings continued under provisions of the Harassment Act by the Ombudsman based on the same allegation. He submitted that in the presence of the special law (i.e. Harassment Act) the same set of facts could not be basis of an inquiry and disciplinary proceedings under the E&D Rules because the special law would trump the general law. He further stated that the continuation of two proceedings, one under the special law (i.e. Harassment Act) and the other under the E&D Rules was tantamount to double jeopardy and consequently the impugned SCN was ultra vires the law. He further submitted that by order dated 10.02.2023, the Ombudsman found that the complaint filed pursuant to provisions of the Harassment Act was maintainable notwithstanding that an inquiry was also being conducted against the petitioner pursuant to the E&D Rules. A representation against this order of the Ombudsman was filed before the President who by order dated 13.07.2023 upheld the same, which was brought on record through C.M. No.1696 of 2025. The petitioner also brought on record order dated 07.04.2025 passed by the Ombudsman dismissing the complaint filed against the petitioner by respondent No.4 on the basis that the charge that the petitioner had sexually harassed respondent No.4 had not been proved on the basis of cogent evidence. He submitted that the petitioner could not be simultaneously proceeded against under provisions of the Harassment Act and the E&D Rules. And once the complaint against the petitioner had been dismissed by the Ombudsman on the basis that the charges of harassment had not been proved, there was no basis to continue with proceedings under the E&D Rules.

3. Learned Assistant Attorney-General submitted that the inquiry against the petitioner in terms of provisions of the E&D Rules may have been triggered by the complaints filed by respondent No.4, an independent complaint filed by respondent No.4 before the Ombudsman under provisions of the Harassment Act did not create a bar against the Federal Government proceeding against the petitioner under provisions of the E&D Rules. He submitted that pursuant to complaints received by the Ministry of Foreign Affairs ( MOFA ) from respondent No.4 dated 17.06.2022, 18.06.2022 and 09.07.2022, MOFA solicited the views of Pakistan's Ambassador to Madrid. The Pakistan's Ambassador to Spain informed MOFA that the petitioner had admitted to having an affair with respondent No.4 while asserting that the same was consensual. The Ministry then constituted a fact-finding team comprising two Ambassadors who visited Barcelona to ascertain relevant facts. By report dated 03.08.2022, the fact-finding team concluded that the petitioner was liable for inappropriate behavior and that the petitioner ought to be recalled from Spain. The fact-finding team comprising Pakistan's Ambassador to Bulgaria and Pakistan's Ambassador to Poland concluded that there was evidence of harassment in the tone and language used by the petitioner while communicating with respondent No.4. And further that the petitioner as Consul General in Barcelona, being Head of Mission, had not discharged his responsibility to manage the circumstances that resulted in the filing of the complaints by respondent No.4. Meanwhile, respondent No.4 filed civil and criminal proceedings against the petitioner in Barcelona in which Pakistan's Consulate in Barcelona was also made a respondent. MOFA therefore concluded, after seeking legal advice, that the petitioner ought to be recalled to Pakistan. For such purpose, the Prime Minister approved the summary dated 06.08.2022. Subsequently, the Prime Minister constituted an Inquiry Committee on 10.10.2022 under provisions of the E&D Rules. The Inquiry Committee recommended on 07.07.2023 that the penalty of dismissal from service might be imposed on the petitioner. And in view of such recommendation the impugned SCN was issued to the petitioner. He submitted that the administrative and disciplinary proceedings being undertaken under provisions of the E&D Rules had no co-relation with the complaint filed by respondent No.4 against the petitioner under provisions of the Harassment Act. Both complaints could continue simultaneously and any consequences produced for the petitioner as an outcome of such proceedings would not cause double jeopardy to the petitioner. He further submitted that the petition was not maintainable as the SCN under provisions of the E&D Rules was a step taken to enforce the terms and conditions of service of the petitioner. Such proceedings could not be impugned before the High Court in its constitutional jurisdiction in view of Article 212 of the Constitution.

4. Learned counsel for respondent No.4 submitted that the provisions of Article 13 of the Constitution that afforded protection against double jeopardy were not attracted in the instant matter. He submitted that the manner in which harassment was defined under the Harassment Act had a narrower scope than that afforded to the term under the E&D Rules. He submitted that Section 12 of the Harassment Act provided that the provisions of such Act were in addition to and not in derogation of any other law for the time being in force. This was meant to provide an additional protection to women within their workplaces and to protect the right of dignity afforded to women. He submitted that Article 13 and the protection it afforded related to criminal prosecution and not disciplinary proceedings under the E&D Rules or civil proceedings under provisions of the Harassment Act. He contended that the argument of the learned counsel for the petitioner that provisions of the Harassment Act had impliedly repealed provisions of the E&D Rules was misconceived. The doctrine of implied repeal could only be used where the provisions of a law incorporated later in time were completely inconsistent with or contradictory to the provisions of an earlier law, such that both sets of provisions could not stand together. He submitted that no such case was made out when provisions of the Harassment Act were juxtaposed against provisions of the Civil Servants Act, 1973, read with the E&D Rules. He argued that proceedings under the Harassment Act as well as the E&D Rules could continue simultaneously, as both sets of law were special laws that had primacy within their particular domains. For such proposition, he relied on Nadia Naz v. The President of the Islamic Republic of Pakistan (PLD 2023 SC 588), Raja Tanveer Safdar v. Mrs. Tehmina Yasmeen and others (PLD 2024 SC 795), Faraz Naveed v. District Police Officer Gujrat (2022 SCMR 1770), Imran Amir v. Mst. Ismat Bibi and another (2023 CLC 1059), Dr. Sohail Hassan Khan v. Director General (Research), Livestock and Dairy Development Department, Punjab (2020 SCMR 1708), Asif Mehmood Butt v. Regional CEO, NBP (2011 PLC (C.S.) 1462) and Falak Sher v. Inspector General Police, Lahore (2005 SCMR 1020).

5. Before we consider the primary question of law that arises in the instant petition, i.e. whether simultaneous proceedings against a citizen pursuant to provisions of the Harassment Act and the E&D Rules constitutes double jeopardy and undermines the guarantee provided by Article 13 of the Constitution, let us briefly take note of the factual background in which the controversy has arisen. Respondent No.4 was a local employee of Pakistan's Consulate General in Barcelona. She alleged that she had been sexually harassed by the petitioner, who at the relevant time was the Consul General in Barcelona. She filed complaints with the MOFA, which was her employer. In view of the sensitivity of the matter, MOFA constituted the fact-finding team comprising two senior diplomats who were serving as ambassadors in neighboring countries. The fact-finding team visited Barcelona and concluded that a case of harassment was made out along with a case of mismanagement on part of the petitioner as Consul General. Respondent No.4 meanwhile pursued other legal remedies. These remedies included filing of civil and criminal proceedings in Spain as well as the filing of a complaint before the Ombudsman under provisions of the Harassment Act. MOFA, after seeking legal advice and considering questions of immunity afforded to a Consular Officer as well as the consequences that may flow to Pakistan as a sovereign with its presence in Spain, sought to recall the petitioner from his position in Barcelona.

6. The issues that emerged as a consequence of the fact-finding inquiry undertaken by the fact-finding team appointed by MOFA included the question of harassment, the question of efficient management of the Consulate General in Barcelona under the petitioner's watch, and the question of management of funds and personnel at the Consulate General in Barcelona. In other words, the matters flagged by the fact-finding team were of a wider import than allegations of sexual harassment. It was in this background that the Prime Minister, on the recommendation of MOFA, ordered that the petitioner be recalled from Barcelona and ordered the initiation of an inquiry under provisions of the E&D Rules, which subsequently resulted in the issuance of the impugned SCN.

7. During the initial stages of fact-finding being undertaken by MOFA, the record reflects that the petitioner invited MOFA to initiate a proper inquiry under the E&D Rules to enable him to clear his name of charges impugning his reputation and integrity. He also objected to the proceedings pending before the Ombudsman on the basis that as he was being proceeded under the E&D Rules and thus the Ombudsman had no jurisdiction in the matter. This argument did not find favour with the Ombudsman. His representation against the Ombudsman finding was then dismissed by the President by order dated 13.07.2023 while noting that proceedings against an employee under the E&D Rules could be initiated on grounds of misconduct, inefficiency and corrupt practices. The scope of the Harassment Act was much more limited and the objective of initiating proceedings under the Harassment Act was to ascertain whether workplace harassment had taken place in terms of the definition of harassment provided under section 2(h) of the Harassment Act. It was further observed that the procedure prescribed for purposes of an inquiry under the Harassment Act, including the constitution of an inquiry committee in terms of section 3(2) of the Harassment Act was distinct from the procedure prescribed under the E&D Rules and the committee to be constituted for such purpose under the E&D Rules. In rendering its findings, the President also relied on the law laid down by the Supreme Court in Nadia Naz v. The President of the Islamic Republic of Pakistan (PLD 2023 SC 588).

8. The charge sheet served on the petitioner dated 21.10.2022 noted that WhatsApp messages sent by the petitioner to respondent No.4, who was an Administrative Assistant serving at Pakistan's Mission in Barcelona, constituted harassment. The petitioner's assertion that respondent No.4 was liable for making advances on him, in view of the fact that he took no steps to put an end to such inappropriate behavior in his capacity as Head of Mission, constituted wrong doing. And that it had been alleged that the petitioner sought to assault respondent No.4 in a hotel on 03.05.2022. In view of such charges, he was put on notice to explain why he ought not be found guilty of misconduct as defined under Rule 2(k) of the E&D Rules, why he ought not be held liable for inefficiency in terms of rule 3(a) of the E&D Rules and not be subjected to the penalty of dismissal from service in terms of rule 4(3)(e) of the E&D Rules.

9. It is evident that the charges brought against the petitioner in terms of the aforementioned charge sheet are broader than the charge of harassment under provisions of the Harassment Act. The term harassment has been defined under section 2(h) of the Harassment Act as follows: harassment means:- (i) any unwelcome sexual advance, request for sexual favours, stalking or cyber stalking or other verbal, visual or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, including any gestures or expression conveying derogatory connotation 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; On the contrary, misconduct has been defined in terms of Rule 2(k) of the E&D Rules as follows: misconduct means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentlemen and includes any act on the part of a civil servant to assert or attempt to assert political or other exterior influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a civil servant, or having entered into plea bargain under any law for the time being in force and has returned the assets or gains acquired through corruption or corrupt practices, voluntarily; Penalty has been defined in terms of Rule 2(l) of the E&D Rules as follows: "penalty" means a penalty as prescribed under these rules.

10. The grounds prescribed in the E&D Rules for proceeding against a civil servant are not limited to misconduct alone. Rule 3 of the E&D Rules provides that a civil servant can be proceeded against on grounds of inefficiency, corrupt practices, and subversive activities, apart from the ground of being guilty of misconduct. A perusal of the definition of misconduct together with the grounds available for proceeding against a civil servant under the E&D Rules are much broader than the ground of harassment on the basis of which penalties can be imposed on an accused under provisions of the Harassment Act. This Court further agrees with the findings of the President in the decision dated 13.07.2023, wherein the objections to maintainability of a complaint under the Harassment Act (while proceedings against the same accused under the E&D Rules were continuing) were dismissed.

11. The E&D Rules have been enacted in exercise of delegated authority under section 25 of the Civil Servants Act, 1973, pursuant to which, inter alia, the terms and conditions of persons in the service of Pakistan have been prescribed. Proceedings initiated under provisions of the E&D Rules are a matter between the Federal Government in its capacity as an employer and a civil servant in his/her capacity as an employee. The purpose of such proceedings is to ensure that an employee is abiding by the terms and conditions of service prescribed for purposes of his/her conduct in discharge of his/her duties. The object and scope of the Harassment Act is altogether different as the rationale for enactment of such law, as explained in its preamble, is to provide for protection of women from harassment at the workplace. A set of facts on the basis of which a complaint is founded against an accused under provisions of the Harassment Act needs to be inquired into under provisions of the said Act, which, if proved, the consequences and penalties prescribed under the Harassment Act are to flow toward the accused.

12. The proceedings under the Harassment Act are adversarial in nature, where a complainant makes allegations against an accused and the same have to be proved on the basis of cogent evidence. That the penalties prescribed in terms of section 4 of the Harassment Act may be similar to, or overlap with, the penalties prescribed in terms of Rule 4 of the E&D Rules has no bearing on the object, purpose and effect of the proceedings under the Harassment Act on one hand and E&D Rules on the other. The proceedings under the Harassment Act are initiated on the behest of a complainant who has been wronged by the actions of an accused. The penalties prescribed under section 4 of the Harassment Act, including the penalty of fine payable by an accused to the complainant, can be seen as a restitutionary measure apart from acting as a deterrent. The proceedings under the E&D Rules being disciplinary proceedings initiated by an employer are of a different nature altogether. These proceedings may be triggered by the complaint filed by another employee, who also has an independent cause of action under provisions of the Harassment Act or other laws for the time being in force. But such complainant does not have an independent right to require the initiation of proceedings against the accused under provisions of the E&D Rules. The proceedings under the E&D Rules are not necessarily adversarial in nature and are meant to confirm and ensure that the terms and conditions of service prescribed for purposes of the Civil Servants Act, including the requirements as to the conduct and efficiency of an employee, are being complied with. As explained above, the fact that the penalties prescribed under the E&D Rules may overlap with some of the penalties prescribed under the Harassment Act does not mean that the cause of action, the procedure for inquiry and consequential action, and the consequences of a finding of wrong doing under both laws are the same.

13. The basic assertion of the learned counsel for the petitioner was that simultaneous proceedings under provisions of the Harassment Act and E&D Rules undermine the guarantee afforded by Article 13(a) of the Constitution, which provides that, no person shall be prosecuted or punished for the same offence more than once. The first thing to note here is that the protection afforded by Article 13(a) relates to prosecution and/or punishment for offences and therefore falls within the domain of criminal law. The matter before us involves civil proceedings under the Harassment Act on the one hand and disciplinary proceedings under E&D Rules on the other. Article 13(a) therefore has no application in the facts of the present case.

14. The question of whether or not proceedings in relation to a criminal charge could continue alongside departmental proceedings in a service matter came before the Supreme Court in DIG of Police v. Anees ur Rehman Khan (PLD 1985 Supreme Court 134), in which it was held that, the scope and the law applicable to the criminal trial was different from that applicable to departmental inquiry. The charges in the two were not identical nor substantially the same. The competent authority was not therefore duty-bound under any provision or principle of law to await and follow the judicial verdict in the case. The question was again considered in Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court (2004 PLC (C.S.) 809) in which the Supreme Court held that, there is no bar to proceed departmentally against any civil servant as departmental disciplinary proceedings are entirely different from that of the criminal proceedings on criminal charges and are neither coextensive nor inter-connected. Judicial trial is not a substitute for the departmental inquiry as it relates to the enforcement of criminal liability, whereas the departmental proceedings are concerned with the service, discipline and good order.

15. In the matter of Falak Sher v. Inspector General of Police (2005 SCMR 1020), an employee of the police had been given the penalty of compulsory retirement. The said employee was subsequently acquitted in a criminal case emerging from the same facts on the basis of which disciplinary proceedings were initiated. The Supreme Court dismissed the contention that, in view of the acquittal of the petitioner, he could not have been awarded any penalty as a result of disciplinary action. It was held in Dr. Suhail Hassan Khan v. Director General (Research), Livestock and Dairy Development Department (2020 SCMR 1708) that, it is by now well settled that a civil servant cannot escape departmental proceedings or consequences thereof on account of his acquittal/exoneration on a criminal charge arising out of the same impugned transaction; these two are entirely different jurisdictions with different standards of proof as well as procedures; criminal prosecution requires strict proof through a narrowly jacketed procedure and, thus, State s failure on criminal plane does not provide shield of double jeopardy to a delinquent officer.

16. The principle laid down in Dr. Suhail Hassan Khan was reiterated in Faraz Naveed v. District Police Officer, Gujarat (2022 SCMR 1770). It was held by the Supreme Court that, the rationale and astuteness of initiating disciplinary proceedings by the employer is to unmask whether the charges of misconduct levelled against the delinquent are proved or not and in case his guilt is proved, what action should be triggered against him under the applicable service laws, rules and regulations, which may include the imposition of minor or major penalties in accordance with the fine sense of judgment of the competent authority It is well settled exposition of law that the prosecution in the criminal cases as well as the departmental inquiry on the same allegations can be conducted and continued concurrently at both venues without having any overriding or overlapping effect. The object of criminal trial is to mete out punishment of the offenses committed by the accused while departmental inquiry is inaugurated to inquire into the allegations of misconduct in order to keep up and maintain the discipline and decorum in the institution and efficiency of department to strengthen and preserve public confidence.

17. In the matter of Saifur Rahman v. Chairman, National Accountability Bureau (PLD 2022 SC 409), it was asserted before the Supreme Court that simultaneous proceedings under provisions of the Companies Act, 1984, and provisions of the National Accountability Bureau Ordinance, 1999, fall foul of the guarantee in Article 13(a) of the Constitution. The Supreme Court was not impressed and held that, the expressions prosecuted and same offence used in Article 13 are of vital significance in determining the scope of the protection guaranteed. The expression prosecuted means prosecuted on a charge of criminal nature before a court of law; it does not include prosecution on the basis of breach of some code of conduct by a disciplinary authority or breach of some regulatory framework by an administrative authority. The expression same offence means offence constituted of the same ingredients and does not mean same matter or same facts . The ingredients of the offence earlier charged and the offence subsequently charged should be the same, to attract the bar of Article 13, in the sense that the facts constituting the offence earlier charged were also sufficient to justify the conviction of the offence subsequently charged.

18. The interpretation of Article 13 came before the Supreme Court in the matter of Muhammad Ashraf v. The State (1995 SCMR 626). It was held by the Supreme Court that, the rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim "Nemo bis debet puniri pro uno delicto" which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of Criminal Law that no one should be exposed to hazards of punishment and convicted twice for one and the same offence Constitutional guarantee is available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited.

19. The scope of the protection afforded under Article 13(a) came before the Supreme Court in The State v. Jehangir Akhtar (2018 SCMR 733) in which it was held that, disciplinary action taken by a department and criminal prosecution are quite distinct from each other and can proceed simultaneously or one after the other and such separate actions do not attract the principle of double jeopardy. It has already been clarified by this Court in many a precedent case that disciplinary proceedings are meant solely for maintaining and ensuring purity of service, whereas criminal prosecution is meant to punish a person for the offence committed by him and that in a proper case, departmental and criminal proceedings can proceed simultaneously or one after the other.

20. Most relevant for our present purposes is the law as clarified by the Supreme Court in Raja Tanveer Safdar v. Mrs. Tahmina Yasmeen (PLD 2024 SC 795). The question before the Supreme Court was whether a person could be proceeded against and punished under provisions of the Defamation Ordinance, 2002, the Harassment Act and the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ( PEEDA Act ). The Supreme Court reiterated the enumeration of principles of double jeopardy in Muhammad Ashraf. It then took into account the fact that three different decisions had been rendered against the petitioner in terms of three separate laws. The Supreme Court held that, each of these laws [Defamation Ordinance, Harassment Act and PEEDA Act] are special laws which operate under their given jurisdiction and can result in penal consequences if the requirement of the law are fulfilled. It was held that, in terms of the 2010 Act [Harassment Act] harassment means gender-based harassment and discrimination, which can be sexual in nature. Any action that causes interference with performance or creating an intimidating, hostile or offensive work environment falls within the definition of harassment under section 2(h) of the 2010 Act. The said Act operates for a very specific purpose, which is to determine whether there has been any harassment at the workplace by an employer against an employee. It was held that, as far as PEEDA Act is concerned, it is for misconduct by levelling false and fabricated allegations against respondent No.1, which is a separate and distinct cause of action against the petitioner. Hence, a conviction under any of these laws will not prevent or bar a conviction under the other two laws, which operate within their own domain for a specific purpose. The Supreme Court explained that, even though the parties are the same, the cause of action is separate in each case before different forums with distinct penal consequences emanating out of its respective statutory laws.

21. In view of the aforesaid law as applicable to facts of this case, the petitioner s argument of being subjected to double jeopardy is misplaced and devoid of legal basis. The ratio of Raja Tanveer Safdar is squarely applicable to the case at hand. While respondent No.4 was a complainant in relation to the complaint filed under the Harassment Act, as well as for purposes of initiation of proceedings under the E&D Rules, the cause of action for purposes of both proceedings was distinct, the procedure to be adopted for purposes of both proceedings did not require to be correlated, and the consequences that may flow to the petitioner in case the charge against him in each of the two sets of proceedings is made out, in view of the applicable standard of proof, would be independent of each other.

22. This Court therefore finds that the principle of double jeopardy does not apply in the instant matter and neither can any principle of equity and fairness be relied upon by the petitioner to argue that proceedings against the petitioner under the Harassment Act and the E&D Rules could not proceed simultaneously. Further, as was held by the Supreme Court in Dr. Suhail Hassan Khan and reiterated in Faraz Naveed, the petitioner cannot escape departmental proceedings or consequences thereof on account of his exoneration on a harassment charge that has been adjudicated under provisions of the Harassment Act.

23. While this Court has heard and decided the question of law that arose in the instant matter while treating it as a case of first impression involving simultaneous proceedings under provisions of the Harassment Act and the E&D Rules, especially as the judgment of the Supreme Court in Raja Tanveer Safdar that provides guidance in the matter was rendered after the instant petition was admitted for hearing, this Court has also come to the conclusion that the petition impugning a SCN issued under provisions of the E&D Rules was also not maintainable in terms of Article 212 of the Constitution. In view of the law laid down by the Supreme Court in I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041), Pir Muhammad v. Government of Balochistan (2007 SCMR 54) and Muhammad Hassan Ullah v. Chief Secretary Government of Balochistan (2025 SCMR 134), it is now settled that even where a challenge is brought against an action that falls within the scope of terms and condition of service of a civil servant on the basis that such action is in breach of fundamental rights of the civil servant, the same ought to be agitated before the Federal Services Tribunal and not before the High Court in its constitutional jurisdiction.

24. For the aforementioned reasons, this Court finds that the petition is devoid of merit apart from not being maintainable and is therefore dismissed subject to a cost of Rs.50,000/- payable by the petitioner to respondent No.1 within a period of thirty (30) days. Learned counsel for the petitioner will file a certificate stating the order granting cost has been complied with by or before the expiry of the (30) days period. MH/205/Isl. Petition dismissed.