Principles of Natural Justice – Violation of – Non-disclosure of relevant material to the affected party – Disclosure in a sealedcover to the adjudicating authority – Armed Forces Tribunal (AFT) dismissed the applications challenging the denial of Permanent Commission in the Indian Navy – Whether the AFT could have adjudicated on the validity of the selection proceedings when relevant material was disclosed only to the AFT in a sealed cover – On appeal, held: All material which is relied upon by either party in the course of a judicial proceeding must be disclosed – Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with ‘reasonable probability’ influence the decision of the authority must be disclosed – A one-sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice – In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence – Non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent – Material which was relied upon by the AFT for determining the vacancies which were available and for assessing as to whether they were utilised correctly has not been disclosed to the appellants – Similarly, the Board proceedings that were relied upon by AFT to determine if the selection for Permanent Commission (PC) was fair have not been disclosed to the appellants – While the AFT on a perusal of the records concluded that there was no gender bias or mala fides in the grant of PC, the officers do not possess the material to challenge this observation – Respondents while protecting the confidentiality of the proceedings of the Board must disclose the position in merit of the appellants vis-à-vis the parameters and their weightage devised by the respondents – Material prejudice has been caused by the process which has been followed of disclosing the information of vacancies and the board proceedings to the AFT in a sealed cover – Impugned judgment of the AFT set aside – OAs corresponding to the appeals filed before Supreme Court are restored for fresh adjudication by the AFT – Armed Forces Tribunal Act 2007.
Practice and Procedure – Disclosure of relevant material to the adjudicating authority in a sealed cover – Held: It makes the process of adjudication vague and opaque – Disclosure in a sealed cover perpetuates two problems – Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover – Adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge – Secondly, it perpetuates a culture of opaqueness and secrecy – It bestows absolute power in the hands of the adjudicating authority, tilting the balance of power in a litigation in favour of a dominant party which has control over information – Most often than not this is the state – A judicial order accompanied by reasons is the hallmark of the justice system – It espouses the rule of law – However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny – The sealed cover procedure affects the functioning of the justice delivery system both at an individual caseto case level and at an institutional level – However, it is not that all information must be disclosed in the public – Sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed – The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve – The exceptions should not, however, become the norm. Khudiram Das v. State of West Bengal (1975) 2 SCC
81 : [1975] 2 SCR 832, T. Takano v. Securities and Exchange Board of India Civil Appeal Nos. 487-488 of 2022 – relied on.
ORS ETC
Union of India v. Lieutenant Commander Annie Nagaraj (2020) 13 SCC 1 : [2020] 10 SCR 433; Lt. Col. Nitisha v. Union of India (2021) SCCOnLine SC 261 : [2021]
4 SCR 633 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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