Full Judgment
H.R. Krishnan, J.
1. This is an application by a police constable contending that the order of dismissal is bad for two reasons of non-compliance with the statutory rules. Firstly while he had been appointed by the Inspector-General of Police, Madhya Bharat, he was removed by the order of the Superintendent of Police, Indore, who is, of course, a subordinate authority. The second ground is that he had not been given a reasonable opportunity to cross-examine witnesses that deposed against him.
2. The first ground is by now covered by a number of rulings including one by the Supreme Court in Rajvi Amarsingh v. State of Rafasthan : [1958]1SCR1015 , in 1946, the petitioner was appointed by the Deputy Inspector-General of Police of the erstwhile Indore State. He was continued in the service of the Madhya Bharat State and was ultimately absorbed in the service of the new State; but the appointment as such continued and there was no fresh appointment. Under the rules in force in the Madhya Bharat State, a police constable could be removed from service by the Superintendent of Police subject to the proceedings, show-cause notices, inquiry and the other requirements of the rules and Article 311. Now, there was no moment at which the Inspector-General or the Deputy Inspector-General of the erstwhile Indore State co-existed with the Superintendent of Police in the district of Indore. Therefore, there would be no occasion to hold that the Superintendent of Police in the State of Madhya Bharat is an authority actually subordinate to the Deputy Inspector-General in the erstwhile Indore State. It is theoretically conceivable that there are, statutory rules or instruments creating a notional subordination to or equivalence with this or that authority in the new State with, this or that authority in the erstwhile State. But no such rule or law is placed. Thus, it is physically impossible for the petitioner to show that the authority dismissing him is subordinate in status to the authority appointing him. In view of the rulings settling this point, it is not necessary to discuss this matter further.
3. The other ground that he had not been given opportunity to cross-examine is really factual. The Inspector of Police was directed to inquire and he sent his papers to the Superintendent. The Superintendent wrote to him on 13 September 1965 that the Inspector has failed to afford the petitioner an opportunity to cross-examine two of the witnesses. It is not known whether there were other witnesses or whether the two witnesses mentioned in that letter had been examined-in-chief in the actual presence of the petitioner. But this much is clear that till 13 September 1955 there had not been cross-examination. The petitioner had suggested feebly that he did not know of the Superintendent's having sent the matter back to the Inspector. On the contrary, the State has contended that the witnesses were called by the Inspector, placed before the petitioner and the petitioner did actually cross-examine. This averment of fact is supported by the contents of the order of the Superintendent dated 29 March 1955. Besides, considering all the facts and the cause shown by the petitioner consequent to the punishment notice, it mentions the contents of the cross-examination of the witnesses. Obviously, there was cross-examination and in regard to the two witnesses, sometime between (sic) 13 September 1955 and I therefore do not accept the factual allegation that there was no opportunity afforded to cross-examine these witnesses.
4. Sri Daji, counsel for the petitioner, has suggested a slightly modified form of the original argument. It may be that the witnesses were called again for cross-examination and the petitioner did cross-examine. But if the witnesses had been examined ex parte, that is, in the absence of the petitioner, then even if there was cross-examination subsequently, the inquiry is not a fair inquiry. I do not accept the argument for two reasons. On the facts, there is no clear averment or affidavit that the examination-in-chief of the witnesses was made by the Inspector behind the back of the petitioner. Secondly, even on the assumption that the examination-in-chief was made ex parte, the opportunity to cross examine given subsequently with access to the contents of the examination-in-chief is sufficient for the purpose of the inquiry. The point is not whether the petitioner is physically present at the time of the examination-in-chief though undoubtedly it would be very convenient for everybody concerned. The point is, whether he is given an opportunity to cross-examine the witnesses with reference to the examination-in-chief and certainly to adduce evidence of his own. It would certainly be unfair for the inquiry officer to examine witnesses behind the back of the petitioner, then seal up the record of examination-in-chief and call up the petitioner to cross-examine. That is not the allegation here. If the petitioner is allowed to cross-examine with access to the record of the examination-in-chief, I certainly fail to see where the irregularity is. The mere fact that ail the elements of a criminal trial are not reproduced would not make any difference. Thus, as long as it is not shown (in this case not even alleged) that the petitioner was called upon to cross-examine without being shown or given a copy of the record of the examination-in-chief, there is no irregularity.
5. There is no other point raised in this case.
6. In the result, the application is dismissed. Costs payable to the Government of Madhya Pradesh and pleader's fee of Rs. 50 by the petitioner.