CDR AMIT KUMAR SHARMA ETC versus UNION OF INDIA & ORS ETC

Citation: [2022] 18 S.C.R. 625 · Decided: 20-10-2022 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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625
CDR AMIT KUMAR SHARMA ETC
v.
UNION OF INDIA & ORS ETC
(Civil Appeal Nos. 841-843 of 2022)
OCTOBER 20, 2022
[DR DHANANJAYA Y CHANDRACHUD AND
HIMA KOHLI, JJ.]
Principles of Natural Justice – Violation of – Non-disclosure
of relevant material to the affected party – Disclosure in a sealed-
cover 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
[2022] 18 S.C.R. 625
625
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626
SUPREME COURT REPORTS
[2022] 18 S.C.R.
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 case-
to 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 non-
disclosure 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 –

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