The initiation of a second enquiry based on the same allegations after exoneration violates the principle of double jeopardy and established policies against anonymous complaints.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. R. Mazumdar, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC appearing on behalf of respondent Union of India.

2. The present writ petition is filed assailing that a de-novo enquiry against the petitioner on the same set of facts and same witnesses has been initiated inasmuch as in an earlier enquiry the petitioner was exonerated from the said charge. From the material available on record and from the pleadings of the parties certain important facts, which are necessary for determination of the issues involved are summarised below:

(I) While the petitioner was posted at 05 battalion of ITBP, Leh, Ladakh as Deputy Commandant, on 22.06.2022, one anonymous complaint was lodged against the petitioner to the effect that the petitioner had sold 25 barrels of ‘kerosene oils’ in the open market by transporting the said kerosene oil from Murgo Out Post to Syok Out Post in a Government vehicle bearing No. CH 01 G 8326. An enquiry was conducted and after the enquiry, the presiding officer opined that alleged act of transporting the 25 barrels of kerosene oil was impossible, given the terrain and climatic condition of Leh, Ladakh in the month of February when it receives the maximum snowfall and the petitioner was thus exonerated.

(II) Such an enquiry report was not accepted by the convening authority and the same was returned to the presiding officer of court of enquiry by a letter dated 22.12.2020 pointing out certain lapses and seeking clarifications.

(III) Thereafter the presiding officer of the court of enquiry by its communication dated 31.03.2021 addressed to the DIG (PERS), intimated the clarification sought for.

(IV) The clarifications were made to the following effect:

(a) There is excessive snowfall in the month of February in the Leh area and therefore a vehicle cannot carry a load of 25 barrels of kerosene oil with 10/15 force personal from Murgo Outpost to Syok Outpost as alleged in the anonymous complaint.

(b) The enquiry officer himself attempted to load 25 nos. of anti barrels on a vehicle and it was found not to be possible.

(c) Therefore, the anonymous complaint was baseless.

(V) While the matter was rested at that stage, on 21.03.2023, the petitioner was served with a communication issued by Commandant, 37 battalion cum presiding officer of a de-novo court of enquiry asking the petitioner to appear before the court of enquiry on 25.03.2023.

(VI) The aforesaid communication dated 21.03.2023 is a summon/ notice for cross-examination of the petitioner and some other during court of enquiry at 5 battalion.

(VII) The communication further reflects that an enquiry was directed on 12.01.2023 by the Inspector General, North-eastern Frontier Head Quarter to enquire into the theft/ misappropriation of 25 barrels of kerosene oil from 5 battalions at Murgo Outpost.

(VIII) Such communication was received by the petitioner on 27.03.2023 i.e. after the date fixed for appearance of the petitioner on 25.03.2023.

(IX) Thereafter, the petitioner preferred a representation before the court of enquiry on 28.03.2023. Though such copy of the representation is not annexed with the writ petition however a statement has been made that the petitioner has requested for a copy of the complaint lodged against him by any officer or to give him a copy of any anonymous complaint along with a copy of the previous copy of enquiry report. A statement has also been made that the petitioner further requested for 15 days time from date of supply of the aforesaid document to place his defence.

(X) On 31.03.2023, the commandant in response to the representation filed by the petitioner directed the petitioner to remain present before the court of enquiry from 07.04.2023 to 10.04.2023 and in the event the officer does not report, the report of the enquiry will be submitted to the IG, North-Western Frontier without the statement of the officer.

(XI) This court while issuing notice of motion under its order d