Sept 29, 2026
By Ahmed Saeed
ISLAMABAD
The Federal Constitutional Court (FCC) has ruled that the Protection against Harassment of Women at the Workplace Act, 2010 covers only harassment of a sexual nature, expressly disagreeing with the previous Supreme Court judgements that had treated other forms of workplace harassment as actionable before the Federal Ombudsperson.
The FCC gave the judgement while hearing an appeal filed against the Islamabad High Court (IHC) judgement that had restored the Federal Ombudsman’s decision imposing the major penalty of compulsory retirement on two National Bank of Pakistan (NBP) employees, Usman Shahid and Aqeel Abbas, in a workplace harassment case.
A three-member FCC bench comprising Chief Justice Amin-ud-Din Khan, Justice Ali Baqar Najafi and Justice Syed Arshad Hussain Shah allowed petitions filed by Usman Shahid and Aqeel Abbas and set aside the IHC judgement dated Dec 31, 2024.
The 18-page judgement, authored by Justice Ali Baqar Najafi, examined the scope of the Protection against Harassment of Women at the Workplace Act, 2010, particularly the definition of harassment under Section 2(h), as well as the extent to which a high court can interfere with orders passed by statutory authorities.
According to the FCC, the definition contained in Section 2(h) was exhaustive rather than extensive.
. “An act, conduct or attitude has to be sexual in nature, if it is to be covered under the definition of harassment for the purpose of this act,” it added.
The case originated when an NBP employee, Nadia Sarwar, filed a complaint before the Federal Ombudsman on Sept 3, 2013 under the Protection against Harassment of Women at the Workplace Act, 2010, alleging workplace harassment against Usman Shahid and Aqeel Abbas.
The complaint was allowed and Usman Shahid and Aqeel Abbas were awarded the major penalty of compulsory retirement under Section 4(4)(ii)(b) of the Act.
The two men challenged the Ombudsman’s decision before the President of Pakistan. Their representations were accepted to the extent that the compulsory retirement order was set aside, while the NBP was directed to award them the penalty of censure under Section 4(4)(i)(a) of the Act.
Sarwar then challenged the President’s order before the Islamabad High Court. The IHC set aside the President’s order and restored the Ombudsman’s decision.
Before the FCC, the petitioners challenged the IHC judgement, arguing, among other things, that the high court had exceeded the permissible scope of its constitutional jurisdiction.
The FCC agreed with the petitioners on the scope of judicial review by the high court.
“The scope of the High Court to interfere under the constitutional jurisdiction is only where the orders were passed based upon non-reading or misreading of evidence, without reappraisal of evidence, findings are erroneous assumption of facts, misapplication of law, exercise of excess or abuse of jurisdiction and arbitrary exercise of powers,” the judgement states.
The court further stated that proving sexual harassment required credible material and evidence capable of surviving scrutiny.
“To prove a sexual harassment, a bare minimum requirement is the impartial, credible material, capable of surviving the test of reasonableness and it must be reinforced with convincing/independent evidence,” the judgement states.
The FCC also drew a distinction between conduct that may generally be described as harassment and conduct that constitutes actionable harassment under the 2010 Act.
“It can, therefore, be safely said that any misdemeanour, behaviour or conduct unbecoming of an employee at the workplace towards other employee or an employer, or from an employer to an employee or an employee to an employer in an organization may be generically classified as harassment but is not an actionable act per-se under the Act, 2010 unless such behavior or conduct is inherently demonstrated or demonstrable of its sexual nature,” the court held.
The judgement further stated that even serious or damaging workplace behaviour would not fall within the jurisdiction of the Ombudsperson under the Act unless it had a sexual character.
The court set out the distinction in plain terms. “Undoubtedly, every sexual harassment is a harassment but every harassment is not a sexual harassment,” it held.
The FCC also addressed previous judicial interpretations that had treated non-sexual harassment as actionable under the Act.
It noted that earlier judgements of the Supreme Court, including those in the Nadia Naz, Raja Tanveer Safdar and Muhammad Din cases, had adopted broader interpretations of harassment. The FCC expressly disagreed with the observation that every form of workplace harassment could be dealt with under the 2010 Act.
“With due respect to the view of Supreme Court we do not agree with this observation well within our powers under Article 189 of the Constitution on the basis of the very definition of sexual harassment under Section 2(h),” the judgement states.
The FCC explained that the purpose of the 2010 law was to provide women with a safe and smooth working environment by protecting their honour, modesty and respect because of their gender.
It added that the legislation could not be extended to matters falling outside its specific purpose, observing that “a special law is for special situations if attracted and cannot be applied in the general context.”
The judgement also examined the powers of the President in dealing with representations against orders of the Ombudsperson.
It noted that Section 9 of the 2010 Act allows an aggrieved person to make a representation to the President or governor within 30 days of an Ombudsperson’s decision. The President or governor is empowered to pass an order on such a representation.
The FCC referred to earlier cases concerning the exercise of presidential powers and held that the President’s order in the case could not be interfered with by the High Court as a matter of routine through writ jurisdiction.
The court observed that the President’s exercise of quasi-judicial powers was subject to judicial review in appropriate circumstances, but such powers could not be treated as though the High Court was exercising ordinary appellate jurisdiction.
The FCC ultimately concluded that the IHC had exceeded the permissible scope of its constitutional jurisdiction by effectively reassessing the material before the statutory authorities.
The court consequently set aside the IHC judgment and reinstated the order passed by the President.