PESHAWAR: The Peshawar High Court has set aside the action by the federal anti-harassment ombudsperson against an employee of the anti-corruption establishment declaring that only the relevant department is authorised by the law to do so.

A bench consisting of Justice Mussarat Hilali and Justice Mohammad Nasir Mehfooz partially allowed a petition filed by ACE investigation officer Ghulam Mohammad and declared that the order of imposing penalty of compulsory retirement against the petitioner was without jurisdiction.

It added that the competent authority of the petitioner couldn’t be held bereft of the powers to initiate any proceedings against him.

The bench asked the relevant authorities to forward the proceedings of the inquiry against the petitioner to the ACE to treat it as a regular inquiry under the Efficiency and Disciplinary Rules, which regulate the terms and conditions of service, and proceed with the matter strictly in accordance with the law.

Rules only relevant department authorised to act on matter

The court, in a detailed judgment on the petition, discussed several provisions of the Protection against Harassment of Women at the Workplace Act, 2010, and the rules framed thereunder and highlighted certain ambiguities in it regarding the imposition of penalties by the ombudsperson.

“Supposing an ombudsman is empowered to order removal of any employee of an organization, not only proceedings to be initiated under the Efficiency and Disciplinary Rules shall be construed as redundant but the Efficiency and Disciplinary Rules that are framed by the organization, shall also become redundant when it is only the competent authority empowered to impose minor or major penalty,” it ruled.

Referring to Section 10(2) of the Act, which empowers the ombudsperson to impose minor or major penalty, the court declared that Parliament while designating any authority would not divest a competent authority or appoint a parallel authority to perform same functions simultaneously.

In the instant case, a complaint was submitted to the Chief Minister’s Complaint Cell on Mar 30, 2016, by Israr Khan regarding the alleged corruption of a woman employee of the education department.

In 2011, a complaint was filed with the director of the elementary and secondary education department against that employee.

The matter was given to the ACE with the petitioner being appointed as the inquiry officer. During inquiry, he allegedly sent some messages to that employee prompting her to submit a complaint against him to the ACE director on Feb 15, 2018.

She had also filed a complaint with the regional commissioner of federal anti-harassment ombudsperson, who after hearing arguments found the petitioner guilty of harassment and penalized him under the provision of ‘minor penalties’ on Mar 2, 2018.

The petitioner as well as the complainant filed separate appeals before the president of Pakistan wherein the petitioner had requested for setting aside the said order, whereas the complainant had requested for modification of the order to the extent of awarding major penalty to the petition.

The president had accepted appeal of the complainant woman on Jun 13, 2018, and ordered modification of the ombudsperson’s order under the Protection against Harassment of Women at Workplace Act by awarding major penalty of compulsory retirement from service.

The petitioner’s counsel, Danial Asad Chamkani, contended that under the ombudsperson provisions of the said Ac could not dilate upon any matter which related to terms and conditions of service nor it could impose any minor or major penalty on a civil servant.

He added that the ombudsperson could only forward the matter to the organization against whom the complaint was filed.

The lawyer pointed out several lacunas in the law stating that if it was accepted that the ombudsperson could slap major or minor penalty it would turn the competent authority mentioned in the law as redundant.

The bench observed that under Section 11 of the Act, an employer was bound to ensure implementation of the law including to incorporate the code of conduct as a part of their management policy, to form an inquiry committee and to designate the competent authority in the organisation.

It pointed out that under Section 10(2) of the Act, the ombudsperson shall while making the decision on a complaint may impose any of the minor or major penalty specified in Section 4(iv). The bench is added that Section 4 (iv) pertained to minor and major penalties that shall be imposed by the competent authority on the recommendation of the inquiry committee.

Published in Dawn, April 18th, 2021