Point of Law: It is open for the inquiry authority in its discretion to allow the presenting officer to produce evidence not included in the list given to the government servant or the inquiry authority may itself call for the new evidence of recall and reexamine any witness. Note of the rule would indicate that such evidence may be called for only when there is an inherent lacunae or a defect in the evidence which has been produced originally.

JUDGMENT :

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief:

“25(A) Quashing and setting aside the order dt. 22.5.2008 and order dt.11.10.2005 and direct the petitioner to reinstate the petitioner in service with all the consequential benefits with 12% interest.”

2. The facts in brief are as under:

2.1 The petitioner was appointed in the Gujarat Administrative Services, Class-I, in December 1989. During his posting as Deputy District Development Officer, Amreli, the petitioner was placed under suspension on 05.08.1992. After about one year, on 16.07.1993, the petitioner was served with a charge sheet for holding a departmental inquiry. The charges in brief were as under:

Charge-I

Shri K.S.Basathia, former Deputy District Development Officer, Amreli has committed serious misconduct amounting moral turpitude and unbecoming of a Govt. Servant with the trainee nurses, mentioned in the statement of imputation, of Female Health Workers Nursing School, Amreli and has, thereby, violated Rules 3(1)(3) of Gujarat State Civil Services (Conduct) Rules 1971. Charge-II He has misused different Govt. Vehicles for his personal work as mentioned in the statement of imputation and in order to conceal it, he made false entries in the logbook for travelling during period 11.07.1992 to 14.07.1992 in the vehicle No. 6438 and prepared a false record and has shown dishonesty in receiving daily travelling allowances wrongfully whereby has committed fraud with the Government in violation of Rule 3(1)(1) of Gujarat Civil Services (Conduct) Rules 1971 for which he is responsible.

2.2 The appellant filed reply dated 24.11.1993 and denied the charges. The State Government did not feel satisfied with the explanation of the appellant and appointed Commissioner for Departmental Enquiries, Gujarat and Ex-Officio Secretary to the Government, General Administration Department (hereinafter referred to as “the inquiry officer”) to inquire into the charges levelled against the appellant. After conducting detailed inquiry in the matter, the inquiry officer submitted report dated 14.11.1995 with the conclusion that neither of the charges has been proved against the appellant. The State Government did not accept the report and passed order dated 1.10.1996 under Rule 10(1) of the Discipline and Appeal Rules, vide which the matter was remitted to the inquiry officer. The latter after conducting fresh inquiry, submitted report dated 31.12.1998 with finding that the charges have not been proved against the appellant.

2.3 The State Government accepted the findings and conclusion recorded by the inquiry officer in respect of charge No.1 but partly disagreed with him in regard to his conclusion qua charge No.1. Accordingly, notice dated 16.3.2001 was issued to the appellant proposing to take action against him by treating charge No.1 as partly proved. The reasons recorded by the State Government for its disagreement with the findings and conclusion recorded by the inquiry officer in respect of charge No.1 were also communicated to the appellant. In his reply dated 20.04.2001, the appellant pleaded that in view of the findings recorded by the inquiry officer he should be exonerated. He also pleaded that the report of the hand writing expert, which had been obtained at his back, could not be taken into consideration for holding him guilty.

2.4 A reply was filed by the petitioner on 24.11.1993 denying the charges. Having not accepted the explanation, the State Government appointed an Inquiry Officer to inquire into the charges against the petitioner. On 14.11.1995, the Inquiry Officer submitted a report concluding that both the charges were not proved. The State Government did not accept the report of the inquiry officer and passed an order on 01.10.1996 under Rule10(1) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971 (hereinafter referred to as the Discipline & Appeal Rules) by which the matter