The Supreme Court has frowned upon the practice of Armed Forces Tribunal (AFT) of deciding matters based on sealed covers/files shown by the defence services to the bench by hiding it from petitioners. An order of the Supreme Court bench of Justice DY Chandrachud and Justice Hima Kohli delivered on October 20 has made scathing observations while deciding a batch of appeals arises from a judgment dated 3 January 3, 2022 of the Principal Bench of the Armed Forces Tribunal in New Delhi.
The AFT principal bench dismissed the applications challenging the denial of Permanent Commission in the Indian Navy.
The SC bench said that the principle issue at hand was 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. “The AFT, in the course of its decision, has extensively relied upon material which was submitted by the Naval Authorities in a sealed cover.
It has been urged that this material was never disclosed to the appellants and if the material had been disclosed to them, they would have been in a position to demonstrate that much of the data which has been relied upon is seriously in dispute and is not reflective of the correct position. Mr R Balasubramaniam, senior counsel appearing on behalf of the respondent, submitted that it is not as if the respondents voluntarily chose to place the data in a sealed cover and the files which were produced were on the directions of the AFT,” the SC bench noted.
The decision of the AFT led to the institution of twelve Civil Appeals before Supreme Court. Twenty-six officers of the Indian Navy were appellants before SC in the Civil Appeals. Of these twenty six officers, thirteen are still in service pursuant to interim orders. The remaining thirteen officers are out of service since varying dates in 2020, 2021 and 2022. Apart from the twenty six officers who are appellants before the SC in the twelve civil appeals, eight officers have filed applications for intervention. Seven out of eight officers are protected by interim orders while the tenure of the eighth officer (Commander Navneet Sharma) is to end in the month of December 2022.
The SC noted in its order that 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. “The elementary principle of law is that 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,” the SC observed.
The bench went on to say that the 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. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque, it said. “During the course of the hearing, it has clearly emerged before this Court that 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 PC was fair have not been disclosed to the appellants,” the bench noted while setting aside the AFT order and referring the cases back to it for fresh look.
Maj Gen JS Sandhu (retd) is director of Mai Bhago institute
Maj Gen JS Sandhu (retd) has taken over as the Director of Punjab government-run Mai Bhago Armed Forces Preparatory Institute. With this, the boys as well as girls armed forces preparatory institutes have new Directors at helm who are the first change after the respective institutes were set up. Maj Gen Sandhu was commissioned in the Rajput Regiment and has commanded a Rashtriya Rifles battalion, an infantry brigade on Line of Control and an Infantry Division in Punjab. He has also commanded a sub area in Chhattisgarh, was BGS at OTA Chennai and served in Army HQs as Additional Director General Infantry before serving as Additional Director General NCC Punjab, Haryana, Himachal Pradesh and Chandigarh from where he retired earlier this year.