Right to cross-examine witness statements relied on in penalty proceedings requires a fair opportunity before adverse action.

Fairness requires a reasonable opportunity to cross-examine a witness whose recorded statement is relied upon against a party, unless the witness is shown to be dead, untraceable, incapable of giving evidence, or otherwise unavailable without unreasonable delay or expense. Returned undelivered letters alone were insufficient to prove that the Department could not secure attendance, and no material established any valid excuse for denying cross-examination. The impugned penalty order was therefore set aside and the matter remitted for fresh consideration after further to secure the witness, if possible, and then decide the case according to law.

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Issues: Whether the appellant was denied a reasonable opportunity to cross-examine the witness whose statement was relied upon, and whether the impugned penalty order required interference on that ground.

Analysis: The witness was not produced because letters sent to him were returned undelivered. That circumstance alone was held insufficient to conclude that the Department could not procure his attendance. Where the Department relies on a recorded statement against the appellant, fairness requires a reasonable opportunity for cross-examination unless the witness is shown to be dead, untraceable, incapable of giving evidence, or otherwise unavailable without unreasonable delay or expense. No material was shown to establish any such situation.

Conclusion: The appellant's right to a reasonable opportunity of cross-examination was not satisfied. The impugned order was set aside and the matter was remitted to the original authority for fresh reconsideration after making further efforts to secure the witness, if possible, and then decide the matter according to law.

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