1987 PLP 330 (PLC)

2. The learned counsel for the appellant has assailed the order of the learned Senior Member on the following five grounds in appeal namely that; (a) at the time when the transfer order was passed the store at Chichawatni did exist and there was no cause for appellants transfer to Karachi. (b) a vote of no‑confidence was being passed against the President of C.B.A. and the transfer was made by respondents to avoid result of that no‑confidence move. (c) appellant was not transferred to Chichawatni on his own accord but 'under protest. (d) transfer order to Karachi does not disclose whether it was temporary or permanent transfer. The transfer order is illegal because it does not disclose terms and conditions of transfer as per standing orders Ordinance. (e) The transfer has been made to see that appellant does not move to Dharki and is not able to carry on his trade union activities and that he is being victimized due to his trade union activities.

3. As for (a) even if it is conceded that the Store at Chichawatni did exist at the time the transfer was made, it does not follow that the transfer was made without any cause by the respondent. There is nothing in the evidence to support that assertion. Further, unless it is shown that transfer amounted to unfair labour practice we do not propose to interfere with it whether there was any cause or not for the respondents to transfer the appellant.

4. As for (b) and (c) the appellant has come to the Commission against his transfer to Karachi while the grounds at (b) and (c) relate to his transfer from Dharki to Chichawatni. As for the argument at (b) regarding the vote of no‑confidence being passed, the same could not be urged now in appeal as it was never urged in the complaint before the learned Senior Member. Further, the fact that it found its place into the evidence before the learned Senior Member has to be ignored because as long as a fact is not alleged in the complaint petition it cannot be allowed to be proved according to the famous Maxim secundum allegata et probata. We would cite only four of the chain of authorities in this behalf i.e. (i) Nasim Shah v. Muhammad Ali Batalvi P L D 1979 Note No. 3 at page 2. (ii) Faqir Muhammad v. Nasim Ahmad P L D 1979 Lah. 356. (iii) Fahmida Jehan Begum v. Varindamal 1980 C L C 604 and (iv) Boota v. Muhammad Ali 1980 C L C 135.

5. As for the argument that since the transfer order did not disclose whether the transfer was permanent or temporary it was illegal, the learned counsel states that it is the statutory requirement under paragraph 2‑A of the Schedule to the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. We do not feel impelied to answer that argument for that concerns the implementation of the terms and conditions of the appellants employment and not whether there was the element of unfair labour practice present in the transaction, in which case the issue would have fallen under our jurisdiction.

6. As for the argument at (e) that the transfer was made on account of unfair labour practice, we have carefully gone through the entire evidence, and the complaint, we have been unable to find any instance of unfair labour practice meted out to the appellant. Indeed when the appellant wanted to contest trade union election the respondents allowed him leave. No instance of unfair labour practice has been cited and no cause for committing unfair labour practice against the appellant was discerntble because he held no office in the union. The allegation of unfair labour practice is a serious allegation and has to be substantiated by facts. The Indian Supreme Court in the similar circumstances held in Bharat Iron Works v. Daghubhai AIR 1976 SC 98 which we cite with approval: A word of caution is necessary Victimization is a serious charge by an employee against an employer, and therefore, must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as, well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office‑bearer, therefore, is, per se no crucial instance .

7. We thus, did not see any merit in this appeal and had dismissed it earlier in the day. M. Y. H./77/Lb Appeal dismissed.