AMANULLAH KHAN vs CHIEF SECRETARY, GOVERNMENT OF N.W.F.P. and 2

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---The petitioner, while posted as Chief Officer, Municipal Committee, Laki Marwat, was suspended on the allegations that an amount of Rs,24,48,624 deposited by the Contractors of District Council, Bannu, through pay slips/cheques in the authorised Banks during the years 1991, 1992 and 1993 was not traceable. The petitioner in those days was posted there as Chief Officer, District Council, Bannu. The Audit Party noticed the shortage, therefore, before the criminal proceeding, a departmental inquiry was initiated "to fix the responsibility because the alleged amount must have been drawn from the Bank for misappropriation." In consequence, vide orders dated 19-2-1994 Mr. Fida Muhammad Khan, the then Divisional Director, Local Government and Rural Development Department (LG & RDD), Kohat, was appointed as an Inquiry Officer. Pending inquiry, however, he was transferred in routine and Mr. Shah Wali Khan (respondent No, 3) was appointed in his place. The petitioner, inter alia, took up the plea that the Inquiry Officer could not be substituted notwithstanding his participation in the inquiry proceedings". He is alleged to have "applied to the respondents that the order of substitution of the Inquiry Officer was mala fide" and also sought intervention of the Chief Minister N.-W.F.P., but his applications were not responded to. Ultimately, he challenged the said order of substitution of the Inquiry Officer in Writ Petition No,73 of 1994 before the Peshawar High Court, Dera Ismail Khan Bench, Dera Ismail Khan. The learned Division Bench of the High Court observed that "the petitioner seemed to be aggrieved of the substitution of the Inquiry Officer which was apparently the result of routine transfer of the Divisional Director". According to the learned Judges, if the appointment of second Inquiry Officer was violative of certain rules, the petitioner has got efficacious remedy and, therefore, they were not convinced that all the remedies seem to have been closed for the petitioner at the very initial stage of the inquiry proceedings. Summarizing their findings the learned Judges concluded as under:-- "Suffice it to say that in the given hierarchy the remedy is available to the petitioner and hence he should not ask for such a remedy whereby all others are bypassed."

' The last contention raised on behalf of the petitioner that the Inquiry Officer was legally debarred to have gone to Anti-Corruption Establishment to consult some documents was also repelled by holding that:- "There is nothing wrong about this because the Inquiry Officer has to look for the evidence in order to fix a responsibility."

' As a sequel to above reasonings, the learned Judges dismissed the petition in limine on 30-4- 1995.

2. Syed Zaffar Abbas Zaidi, learned counsel for the petitioner, reiterated before us the same contentions which he had raised before the High Court and urged that the substitution of respondent No, 3 as Inquiry Officer for the earlier one having been made on the pretext of transfer of the said Inquiry Officer, besides being violative of the N.-W.F.P. Local Councils Servants (Efficiency and Discipline) Rules, 1980 (hereinafter called as the Rules), was tainted with mala fides.

3. Upon our query, Mr. Zaidi, the learned counsel could not cite any rule where under the Inquiry Officer could not be substituted particularly when the first Inquiry Officer has been transferred in routine. The learned counsel, however, submitted that as there was no rule providing for substitution of an Inquiry Officer, therefore, the inference would be that it was prohibitive.

4. The learned counsel for the petitioner perhaps attempted to press into service in his arguments the concept of `casus omissus'. Casus omissus is a point or case unprovided for. When a given state of affairs does not come within the obvious meaning of the words of the statute, that is, when certain contingencies are not provided for, or when the words do not embrace the particular question in hand, it is a case of `casus omissus'. (See Bhadramma v. Kotam Raj (AIR 1955 Hyderabad 140). By the recognized principles of construction of statutes we are not entitled to read words into a statute unless clear reason for it is to be found within the four corners of the statute itself. In Dr. L. Raymond v. Florence B. Yakehee (MR 1957 Allahabad 212) the process of casus omissus was deprecated in the following words:- "A Court can construe or interpret existing words but cannot supply missing word in a statute."

' In Kamalaranjan v. Secretary of State (AIR 1938 PC 281) this rule of construction was disapproved in the following paragraph at page 383 of the report:-- "The Court cannot put into the Act words which are not expressed and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction, and outside the province of the Court."

Again it is a well-established principle of construction of statutes that the Court cannot supply omissions by implication and analogy, unless existing provisions of a statute by necessary intendment so compel the Court. (See Rajammal v. The Chief Justice (AIR 1950 Madras 185). That is only possible that it effectuates the legislative intention.

5. From the perusal of the Rules, in the case in hand, however, it is not at all implied that the omission to provide for complete prohibition to substitute the Inquiry Officer was unintentional. If there is supposed gap either tacit or implied in the Rules, it is not for the Court to fill it in, but for the rule making authority.

6. In this view of the matter, we are not satisfied that any case has been made out for interference by this Court. The reasoning adopted by the learned Judges in the High Court in declining to grant relief in the matter on the ground of stifling the process of departmental inquiry appears to have proceeded on sound judicial principles. This petition is, therefore, rejected and the leave to appeal is not granted.