Hira Khalid VS President's Secretariat (Public) Through DG Legal etc.

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.3296 of 2024 Hira Khalid Versus President’s Secretariat (Public) through its Director Legal and others

Date of Hearing: 29.01.2025.

Petitioner by: Barrister Sohail Nawaz, for the petitioner (Hira Khalid) in W.P.No.3296/2024 and Barrister Hussain Tahir Zaidi and Mr. Umair Ahmed, Advocate for the petitioner (BAT) in W.P.No.3484/2024.

Barrister Umer Abdullah and Ms. Rubina Wahid, Advocate for the petitioner (PTC) in W.P.No.3785/2024.

Respondents by: Malik Qamar Afzal, Barrister Sultan Qamar and Mr. Muhammad Ishaq Durrani, Advocates for respondent No.3 (Hamza Sohail).

MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.3296/2024, 3484/2024 and 3785/2024 all of which are directed against the order dated 16.08.2024 passed by the President of Pakistan (“the President”) whereby the order dated 27.03.2024 passed by the Federal Ombudsman for the Protection against Harassment of Women at the Workplace (“Ombudsman”) was modified and the penalty of termination from service imposed on Hamza Sohail (“Hamza”), was changed to censure.

2.The facts essential for the disposal of the above mentioned writ petitions are that Hamza was Territory Executive in Pakistan Tobacco Company (“PTC”) whereas Hira Khalid (“Hira”) was Category Brand Manager in PTC. In June 2022, they were both transferred to British American Tobacco SAA Services (Pvt.) Ltd. (“BAT”). In June 2023, Hira became a permanent employee of

BAT.

3.On 25.08.2023, Hira submitted a complaint through email alleging harassment at the hands of Hamza. This complaint was forwarded to the Inquiry Committee constituted under Section 3 of the Federal Ombudsman for the Protection against Harassment of Women at the Workplace Act, 2010 (“the 2010 Act”). On 13.09.2023, the Inquiry Committee issued a show cause notice to Hamza requiring him to submit a written response to the complaint submitted by Hira. As per the contents of the said notice, the specific allegations against Hamza were that he had been stalking and persistently sending text messages to Hira. Hamza, in his response to the said notice, denied the allegations levelled against him. Thereafter, an inquiry was conducted by a three-member inquiry committee and in this process the statements of witnesses were recorded. This process culminated in a report dated 19.10.2023 according to which the allegations against Hamza were substantiated and he was found to have persistently stalked and harassed Hira. The said committee recommended that Hamza be immediately terminated from service. Accordingly, vide letter dated 24.10.2023, PTC terminated Hamza’s employment contract.

4.Hamza preferred an appeal under Section 6 of the 2010 Act against the imposition of the said penalty on him before the Ombudsman. Vide order dated 27.03.2024, Hamza’s appeal was dismissed. He filed a representation against the said order dated 27.03.2024 before the President. Vide order dated 16.08.2024, the President decided the said representation by converting the penalty of termination from service into censure. The said order has been assailed by Hira, PTC and BAT in writ petitions No.3296/2024, 3785/2024 and 3484/2024.

5.Learned counsel for the petitioners, after narrating the facts leading to the filing of the said writ petitions, referred to different documents on the record to demonstrate that Hamza had persistently stalked and harassed Hira and that the latter had been resisting such advances until she filed a complaint

against Hamza; that the penalty of termination from service imposed on Hamza by PTC on the recommendations of the Inquiry Committee was proportionate to the wrong committed by Hamza; that the Ombudsman’s order dated 27.03.2024 clearly mentions that Hamza had not challenged the decision of the Inquiry Committee on merits; that Hamza had also not denied sending numerous messages on WhatsApp to Hira; that the only position taken by Hamza in the proceedings before the Ombudsman is that the matter between him and Hira was of a private nature; that the President’s order dated 16.08.2024 does not set out any reason for converting the penalty of termination from service concurrently imposed on Hamza by the Inquiry Committee and the Ombudsman into a much lenient penalty of censure; and that the President should not have shown indulgence to Hamza after observing that he should have stopped all subsequent messages to Hira but instead he had tried hard to engage Hira in some kind of interaction which was agonizing for Hira. Learned counsel for the petitioners prayed for the writ petitions to be allowed in terms of the relief sought therein.

6.On the other hand, learned counsel for Hamza submitted that perusal of the messages between Hamza and Hira show that they had a cordial relationship; that the penalty of termination from service is not commensurate with the wrong, if any, committed by Hamza; that PTC, as Hamza’s employer, should have afforded him an opportunity of a hearing before simply issuing a letter of termination on the recommendations of the Inquiry Committee; that the Inquiry Committee failed to take into consideration the testimony of the witnesses produced by Hamza; that the harassment alleged against Hamza was not sexual in nature; and that since Hamza was an employee of PTC, BAT could not have issued a show cause notice to him. Learned counsel for Hamza prayed for the writ petitions to be dismissed.

7.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petitions have been set out in sufficient detail in paragraphs 2 to 4 above and need not be recapitulated.

8.This Court, while exercising jurisdiction under Article 199 of the Constitution, cannot carry out a re-appraisal of the evidence produced before the Inquiry Committee. Learned counsel for Hamza has not been able to convince this Court that the proceedings conducted by the Inquiry Committee and/or the Ombudsman suffer from any kind of illegality or procedural irregularity.

9.The sole question that needs to be determined in these proceedings is whether the decision of the President to convert the penalty of termination from service imposed concurrently by the Inquiry Committee and the Ombudsman into one of a simple censure was sustainable in law. In order to appreciate what caused the President to make such conversion, it would be appropriate to reproduce herein below the operative part of the order dated 16.08.2024:- “6. A laborious exercise was undertaken to go through these messages spreading more than three year period in the light of the above questions. It is established from Whatsapp record that hundreds of messages were exchanged between the petitioner and the complainant prior to the message of 2023 where the complainant categorically issued warning to the petitioner not to message her in future. However, the petitioner continued with these messages for some time. In this back drop, when they had already exchanged innumerable messages, it was too late in the day to inflict extreme penalty of dismissal from service on the petitioner. The petitioner certainly should have stopped all subsequent messages but he still tried hard to engage the complainant in some kind of interaction. All this may have been very agonizing for the complainant but in the backdrop of large number of messages there are mitigating factors which are spelt out from the quantum of messages which proceeded the messages when the complainant made it clear to the petitioner not to message her in future. The penalty of removal from service is undoubtedly out of all proportions. The petitioner therefore by means of this order is censured for having persisted with his messages when he was told to desist from such messages. The impugned order is set aside and the

penalty of dismissal from service is reduced to a warning to the petitioner to refrain from such messages to the complainant or to any one in future in similar circumstances. Disposed of accordingly.”

10.As can be gauged from the perusal of the said paragraph, the President has recorded that “hundreds of messages were exchanged between the petitioner and the complainant prior to the message of 2023 where the complainant categorically issued warning to the petitioner not to message her in future.” It would not be appropriate to infer from the said observation that there were friendly relations between Hira and Hamza prior to the message of 2023. The copies of messages from Hamza over a long period of time showing resistance by Hira are on the record and the same have not been denied. After observing that Hamza should have stopped messaging Hira but his continued messages had agonized her, is an observation by the President which is strong enough in nature as to make the penalty of censure disproportionate to the allegations that stand proved against Hamza.

11.The Hon'ble Supreme Court in the case of Saqhib Zar Vs. K- Electric Limited (2024 PLC 287) has held as follows:- “8. As soon as the act of misconduct is established and the employee is found guilty after due process of law, it is the prerogative of the employer to decide the quantum of punishment, out of the various penalties provided in law. The casual or unpremeditated observation that the penalty imposed is not proportionate with the seriousness of the act of misconduct is not adequate but the order must show that the Court and Tribunal/NIRC has applied its mind and exercised the discretion in a structured and lawful manner. No Court has any jurisdiction to grant arbitrary relief without the support of any power granted by the Constitution or the law. Without a doubt, the Court or Tribunal/NIRC in exceptional or appropriate cases or circumstances, may examine the quantum of punishment to figure out the proportionality and reasonableness and may also nullify or overturn such punishment if found out of proportion vis-a-vis the act of misconduct and in this scenario, the punishment awarded by the competent authority may be revisited and converted into some lesser or alternative punishment if provided under the law but in order to exercise such jurisdiction for mitigation, the set of circumstances of each and every case have to be considered minutely. Considering the case in hand, the member NIRC in the original order overturned

the law and the order of reinstatement was not rendered keeping in mind the doctrine of proportionality and reasonableness but modified the act of misconduct from 10 days' absence to 15 days' absence, hence the order was rightly set aside in appeal by the learned full bench of NIRC and affirmed by the learned High court by means of impugned judgment.”

(Emphasis added)

12.Additionally, in the case of Federation of Pakistan Vs. Muhammad Tariq Pirzada (1990 SCMR 2744), the Hon'ble Supreme Court held inter alia that the President, while disposing a representation, cannot pass an order without assigning reason. Furthermore, it was held that the recommendations made by the Ombudsman cannot be lightly interfered with by the President while deciding a representation except for valid reasons to be assigned in writing.

13.In the impugned order dated 16.08.2024, I have not been able to identify any specific ground or reason which caused the President to exercise discretion to reduce the quantum of the punishment concurrently imposed on Hamza by the Inquiry Committee and the Ombudsman.

14.In view of the above, the above mentioned writ petitions are allowed, and the impugned order dated 16.08.2024 is set-aside. The matter is remanded to the President for a decision afresh on Hamza’s representation against the order dated 27.03.2024 passed by the Ombudsman.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 03.02.2025.

(JUDGE)

Ahtesham