ISLAMABAD: The Federal Constitutional Court (FCC) has ruled that a sexual element is necessary for conduct to constitute harassment under the Protection Against Harassment of Women at the Workplace Act, 2010, observing that not every inappropriate, unwanted or harmful act falls within the scope of the law.
The court set aside the Islamabad High Court’s (IHC) December 31, 2024 judgment in a workplace harassment case involving a National Bank of Pakistan (NBP) employee and restored an order passed by the president, which had modified the penalties imposed on two bank officials.
The judgment was issued on appeals filed by NBP officials Usman Shahid and Aqeel Abbas in the case of Nadia Sarwar versus Aqeel Abbas and others.
A three-member FCC bench headed by Chief Justice Aminuddin Khan and comprising Justice Ali Baqar Najafi and Justice Syed Arshad Hussain Shah heard the matter. Justice Najafi authored the 18-page judgment.
The court held that the definition of harassment under Section 2(h) of the 2010 Act must be satisfied for the Federal Ombudsman for Protection against Harassment of Women at Workplace to exercise jurisdiction.
It observed that conduct could be undesirable, inappropriate or harmful without necessarily constituting actionable sexual harassment under the statutory framework.
“In such cases, the Federal Ombudsman for Protection against Harassment of Women at Workplace would not have jurisdiction under the Act, although the organisation concerned could take disciplinary action under its own service rules,” the ruling stated.
The FCC said the law was intended to protect women and men at workplaces from sexual harassment and could not be applied indiscriminately to every complaint involving general misconduct.
The dispute dates back to 2012, when Nadia Sarwar, an NBP employee who had been working at the bank since 2008, lodged a complaint against Aqeel Abbas and Usman Shahid with the bank’s president.
According to the record before the IHC, Sarwar alleged that she was being subjected to harassment and victimisation and that the conduct of the two officials had created an intimidating, hostile and offensive working environment.
She submitted her first complaint to the NBP president on September 24, 2012. After receiving no relief, she approached the bank’s divisional head and raised her allegations through telephone calls and emails.
Sarwar subsequently submitted another complaint to the bank’s president on July 2, 2013, referring to specific incidents that she described as harassment. She alleged that no inquiry or effective action had been taken by the bank.
She then approached the Federal Ombudsman for Protection against Harassment of Women at Workplace on September 3, 2013, invoking the Protection Against Harassment of Women at the Workplace Act, 2010.
The Ombudsman ruled in her favour and imposed major penalties on the two officials. The FCC’s cause-list record describes the original penalty as compulsory retirement, while Associated Press of Pakistan (APP) reported it as dismissal from service.
The president subsequently accepted the officials’ representations and modified the punishment to censure or reprimand.
Sarwar challenged the president’s decision before the IHC, which allowed her petition on December 31, 2024, and set aside the presidential order, thereby restoring the Ombudsman’s decision.
The two officials then approached the FCC, challenging the high court’s ruling.
In its latest judgment, the FCC set aside the IHC decision and restored the president’s order, effectively reinstating the modified penalties rather than the more severe punishment originally imposed by the Ombudsman.
The court also examined the scope of the high court’s authority to interfere with decisions of the Federal Ombudsman.
It held that a high court exercising constitutional jurisdiction could intervene where there was an abuse or excess of jurisdiction, a violation of law, an erroneous assumption or misreading of facts, or a breach of the principles of natural justice.
However, the FCC observed that a high court could not simply substitute its own assessment of the evidence for that of the relevant tribunal or authority unless recognised grounds for constitutional intervention had been established.
The court further held that the president was competent to hear representations against decisions of the Federal Ombudsman, rejecting the basis on which the IHC had interfered with the presidential order.
The ruling also drew a distinction between general workplace misconduct and harassment covered by the specific statutory framework, holding that conduct lacking the required sexual element could not be entertained by the Ombudsman under the Act, although an employer could take disciplinary action under applicable service rules.
The decision comes against the backdrop of a 2025 Supreme Court judgment that adopted a broader interpretation of workplace harassment.
In the case of Muhammad Din versus Province of Punjab, the Supreme Court considered a complaint involving allegations of verbal abuse, character assassination and inappropriate conduct by a driver towards a female doctor.
Former Supreme Court judge Syed Mansoor Ali Shah held that workplace harassment could arise from power and gender dynamics and was not necessarily dependent on sexual desire or conduct.
The judgment also discussed the 2022 amendment to the workplace harassment law, which expanded the statutory definition to include gender-based discrimination that may or may not be sexual in nature when it stems from a discriminatory or prejudicial mindset and results in discriminatory behaviour.
The FCC ruling arose from the Nadia Sarwar case and focused on the statutory definition of actionable harassment and the limits of the Ombudsman’s jurisdiction.
The decision has renewed judicial scrutiny of the scope of workplace harassment law, particularly regarding the extent to which non-sexual but gender-based or otherwise hostile conduct may be addressed under the amended legal framework.