The Federal Constitutional Court (FCC) has determined that a ‘sexual element’ is a necessary criterion for conduct to be classified as harassment under the Protection Against Harassment of Women at the Workplace Act, 2010. The court emphasized that not every inappropriate, unwanted, or harmful behavior falls within the scope of this legislation.
In a significant development, the FCC overturned the Islamabad High Court’s (IHC) December 31, 2024 ruling in a workplace harassment dispute involving an employee of the National Bank of Pakistan (NBP). The court reinstated an earlier order by the President of Pakistan, which had revised the penalties imposed on two bank officials.
The judgment was delivered following appeals by NBP officials Usman Shahid and Aqeel Abbas in the case of Nadia Sarwar versus Aqeel Abbas and others. The three-member bench was led by Chief Justice Aminuddin Khan, with Justices Ali Baqar Najafi and Syed Arshad Hussain Shah also presiding. Justice Najafi authored the detailed 18-page decision.
The court clarified that the definition of harassment under Section 2(h) of the 2010 Act is exhaustive, requiring that any act, behavior, or attitude must possess a sexual nature to qualify as actionable harassment under the law. It noted that conduct might be undesirable, inappropriate, or harmful without necessarily meeting the statutory criteria for sexual harassment.
Accordingly, the ruling stated that in such instances, the Federal Ombudsman for Protection against Harassment of Women at Workplace lacks jurisdiction under the Act, although the concerned organization retains the authority to take disciplinary measures based on its own service regulations.
The FCC further emphasized that the law is not intended to address every complaint of a general nature but specifically aims to protect individuals at workplaces from sexual harassment.
The case dates back to 2012 when Nadia Sarwar, an NBP employee since 2008, lodged complaints against officials Aqeel Abbas and Usman Shahid, alleging harassment and victimization that created a hostile and intimidating work environment. Her initial complaint was submitted to the bank’s president on September 24, 2012.
After receiving no satisfactory response, Sarwar escalated her concerns to the bank’s divisional head via telephone and email. She followed up with another formal complaint on July 2, 2013, outlining specific instances of alleged harassment and highlighting the bank’s failure to conduct an inquiry or take effective action.
Subsequently, on September 3, 2013, Sarwar approached the Federal Ombudsman, invoking the Protection Against Harassment of Women at the Workplace Act, 2010. The Ombudsman ruled in her favor, imposing a major penalty on the two officials. While the original penalty was described as compulsory retirement, other reports indicated it was dismissal from service.
The President of Pakistan later accepted representations from the officials and reduced the punishment to a censure or reprimand. Sarwar challenged this decision in the Islamabad High Court, which on December 31, 2024, set aside the President’s order and reinstated the Ombudsman’s harsher penalty.
The two officials then appealed to the Federal Constitutional Court, which has now overturned the IHC’s judgment, restoring the President’s modified order and effectively reinstating the lighter disciplinary action.
Addressing the scope of the high court’s jurisdiction, the FCC clarified that constitutional courts may intervene only in cases of jurisdictional abuse, legal violations, factual errors, or breaches of natural justice principles. It stressed that the high court cannot replace its own evaluation of evidence with that of the relevant authority unless justified by these grounds.
The FCC also affirmed the President’s authority to review representations against decisions of the Federal Ombudsman, rejecting the rationale behind the IHC’s interference with the President’s order.
In its interpretation, the FCC distinguished between general workplace misconduct and harassment as defined by the statute. It ruled that while certain conduct may be colloquially described as harassment, only behavior meeting the statutory definition of sexual harassment falls under the Ombudsman’s jurisdiction. Undesirable or harmful conduct lacking a sexual element falls outside this scope but may still be addressed through an employer’s internal disciplinary procedures.
This ruling contrasts with a 2025 Supreme Court judgment, which adopted a broader understanding of workplace harassment. In the case of Muhammad Din versus Province of Punjab, the Supreme Court recognized that harassment could arise from power and gender dynamics and need not be linked to sexual desire or conduct. That decision also noted a 2022 amendment expanding the law’s definition to include gender-based discrimination that may not be sexual in nature but results from prejudicial attitudes.
The FCC’s decision, however, is grounded in the specific legal framework applicable to the Nadia Sarwar case and focuses on the Ombudsman’s jurisdiction and the statutory parameters of actionable harassment. This ruling has renewed judicial examination of how workplace harassment is interpreted, particularly regarding the extent to which non-sexual but gender-based or hostile conduct is covered under the 2010 Act as amended.
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