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Sexual intention must be proved in cases filed under workplace harassment act: SC

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Sexual intention must be proved in cases filed under workplace harassment act: SC

Top court dismisses PTV employee's case against her male colleagues


Hasnaat Malik
July 06, 2021

a file photo of the supreme court of pakistan photo express



A file photo of the Supreme Court of Pakistan.


ISLAMABAD: The Supreme Court (SC) of Pakistanhas ruled that sexual intention must be proved in the cases that are proceeded under the Protection against Harassment of Women at Workplace 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," the top court said in its judgment as it dismissed the case of a female employee of the Pakistan Television (PTV) against her male colleagues. One of them was represented by Agha Muhammad Ali Advocate.

"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," read the 12-page judgment authored by Justice Mushir Alam.

The three-judge bench of the apex court led by Justice Alam adjudicated the questions as whether the actionable “harassment”, as defined in section 2(h) of the Act, 2010, was of restricted application or applied to all manifestations of harassment and whether the federal ombudsman had the jurisdiction and/or authority to reinstate the petitioner into service under the provisions of the Protection Against Harassment of Women at Workplace Act, 2010.

The court also said that 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 organisation 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 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".

The court also noted that as could be seen from the definition of harassment, any misdemeanor, behavior, or conduct unbecoming of an employee, or employer at the workplace towards a fellow employee or employer, in any organisation, may it be generically classifiable harassment, is not actionable per-se under the Act, 2010 unless such behavior or conduct is shown to be inherently demonstrable of its ‘sexual’ nature.

The court observed that any other demeaning attitude, behavior, or conduct that may amount to harassment in the generic sense of the word, as it is ordinarily understood, howsoever grave and devastating it may be on the victim, is not made actionable within the contemplation of actionable definition of “harassment” under section 2 (h) of the Act, 2010.

"Giving such restricted meaning to “actionable” harassment, by the legislature in its wisdom, impinges the very object and purpose for which the Act, 2010 was promulgated. The impact of harassment, as generically understood, and how restrictive its application has been made is very well articulated"

The court further observed that the Act, 2010 has specifically been legislated to protect not only working women but men as well only against “harassment having sexual nature” at the workplace and, therefore, any conduct amounting to harassment of any other kind and nature, despite howsoever distasteful and injurious, is not made cognizable before the federal ombudsman.

"The meaning of the term ‘harassment’ as given in Section 2 (h) of the Act, 2010 cannot be stretched to other conduct being not of sexual orientation. Apparently, the reason for limiting the actionable offence of ‘harassment’ could possibly be for the reason it may have a serious impact on all those involved, which includes both the potential ‘harasser’, the potential victims, and the responsibility for avoiding instances of harassment on workplace regulators."

"Such an approach is not unique to Pakistan and is in fact similarly followed in India. 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 of 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," the court added, "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 & 5 actually amounted to sexual harassment within the contemplation of Act, 2010"

Regarding second formulation as to the authority and jurisdiction of the federal ombudsman to grant relief to the complainant, the judgment noted that "it is the prerogative of the complainant, having encountered hostile act of misdemeanor, behavior, or conduct as defined under the Act, 2010 as ‘harassment’ either to make complaint against an accused person, who may be an employer or even an employee, the Inquiry Committee, constituted under section 3 of the Act, 2010 or to the Ombudsman under Section 10 of the Act, 2010."

"The procedure and powers of the Inquiry Committee are provided for in section 4 and 5 of the Act, 2010 respectively. The Inquiry Committee on conclusion of the Inquiry may ‘recommend appropriate penalty against the accused within the meaning of sub-section (4) of section 411 to the Competent Authority’.

"However, where the Inquiry Committee finds the allegations in the complaint leveled against the accused to be false and made with malafide, they may recommend the complaint to the Ombudsman for appropriate action against the Complainant."

"Unsurprisingly, given the draconian structure of the law, no remedy under the Act, 2010 is provided to the complainant, against whom action may be recommended by the Inquiry Committee for action making false and mala fide complaint. The remedy of appeal against the decision of Competent Authority is provided before the Federal Ombudsman in terms of section 6 (1) and (2) both to the accused who is inflicted penalty and to the Complainant who is aggrieved by any decision of the Competent Authority", said the judgment.

The judgment said 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."

The court also observed that the in scheme of the Act, the federal ombudsman has no jurisdiction to inquire into and give findings as regard to the disciplinary proceeding against an employee of the organisation, as a disciplinary matter falls 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.



 

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