High Court Is Not an Appellate Forum in Military Justice: Delhi High Court Upholds Severe Reprimand to Army Subedar for Disobedience

“Punishment Under Section 41(2) of Army Act Was Neither Illegal Nor Disproportionate” –  On 10 October 2025, the Delhi High Court decisively rejected a plea by Subedar Krishan Kumar, a former personnel of the EME Corps, who had sought to quash the disciplinary punishment of severe reprimand awarded under Section 41(2) of the Army Act, 1950, and his consequent discharge from service. In a detailed and strongly worded judgment, the Division Bench of Justice Subramonium Prasad and Justice Vimal Kumar Yadav held that summary trial proceedings under Army Rules were properly followed, no breach of natural justice occurred, and the Court cannot act as an appellate forum to re-examine evidence and findings duly recorded by a military authority.

“It is well settled that in the proceedings such as the Summary Trial conducted in the present petition, the scope of interference by the High Courts in exercise of powers under Article 226 of the Constitution of India, is restricted only to lawfulness of the decision-making process.” [Para 31]

The writ petition was dismissed with a direction to the authorities to process the petitioner’s pension, acknowledging that pension is a deferred right and not a gratuity.

“Refusal to Comply with a Lawful Movement Order Amounts to Misconduct” – No Illegality Found in Court Martial Proceedings

The disciplinary action stemmed from the petitioner’s refusal to comply with Movement Order No.23602/Est-1 dated 09.04.2009, which required him to report to HQ Technical Group EME, Delhi Cantt. The petitioner denied ever receiving the order, but multiple prosecution witnesses contradicted this version.

PW-6, Havildar Devender Singh, categorically deposed:“I gave the Movement Order to the petitioner. He read it and returned it.”

PW-7, Lt. Col. Vinod Nair, the then Commanding Officer, testified:

“The petitioner was issued a Movement Order on 09.04.2009, which he refused to accept and did not report to HQ Technical Group EME, Delhi Cantt., as directed.”

The Court rejected the petitioner’s claim that the Movement Order was never served or that the proceedings were held ex parte, observing: “Eight prosecution witnesses and eight defence witnesses were examined. The petitioner cross-examined prosecution witnesses but refused to sign the proceedings. This clearly negates the allegation of procedural unfairness.” [Paras 25–30]

“Severe Reprimand Cannot Be Said to Be Disproportionate for Persistent Disobedience” – High Court Backs Army’s Disciplinary Standards

After the loss of his wife in 2004, the petitioner, according to evidence on record, consistently displayed “anti-organization behaviour” and refused to comply with lawful postings.

The Court held that the punishment imposed was well within the Army’s disciplinary framework and in proportion to the offence, stating: “Looking at the misconduct, the punishment of ‘severe reprimand’ cannot be said to be disproportionate. As such, the misconduct against the Petitioner has been validly proved.” [Para 31]

The Court emphasized the limited scope of judicial review in such matters:

“The High Court, under Article 226, is not to act as an appellate forum in military discipline matters. Review is limited to jurisdictional errors, perversity, or procedural unfairness.” [Para 19]

“Extension of Service Is Not a Right, Especially After Disciplinary Punishment” – Discharge Order Upheld as Valid and Legal

Though the petitioner was promoted to Subedar Major and was initially granted extension of service, the award of “severe reprimand” under Section 41(2) of the Army Act automatically rendered him ineligible under Annexure-I to Appendix ‘A’ of Army HQ Letter dated 21.09.1998.

The Court explained:

“Personnel punished under Sections 41(1) or 41(2) of the Army Act are ineligible for service extension for a period of three years. The extension granted to the petitioner became inoperative and the discharge was validly ordered on completion of the terms of engagement.” [Para 13]

This administrative action, according to the Court, was strictly in line with the governing rules, and did not require further sanction from a higher authority once the disciplinary criteria were not met.

“Pension Is Not Charity But a Constitutional Right” – High Court Orders Release of Pension from Date of Superannuation

While dismissing the claims of wrongful discharge, the Court drew a clear distinction regarding the petitioner’s right to pensionary benefits.

“It is well settled that pension is not a bounty or a charity, but are deferred wages.” [Para 32]

The Court directed the respondents:

“The Respondents are directed to once again give the pension papers to the Petitioner within six weeks from today and after completion of the necessary formalities, the Petitioner be given pension from the date of his superannuation, within a period of four months.” [Para 32]

This ensured that the petitioner’s statutory entitlements post-retirement would not be withheld merely on account of service-related punishment.

“High Courts Must Respect Military Jurisdiction and Discipline – No Scope to Re-Appreciate Evidence Under Article 226”

Referring to Syed Yakoob v. K.S. Radhakrishnan, 1963 SCC OnLine SC 24, and Union of India v. Major A. Hussain, (1998) 1 SCC 357, the Court reaffirmed that military courts and disciplinary bodies operate with due process, and their findings are not subject to re-evaluation by writ courts.

“Findings of fact reached as result of appreciation of evidence cannot be reopened or questioned in writ proceedings. Adequacy or sufficiency of evidence is not for writ courts to decide.” [Para 19]

The Court also cited B.S. Hari v. Union of India, (2023) 13 SCC 779, noting that judicial review is available only in cases of manifest perversity or procedural unfairness.

A Reassertion of Military Discipline, But with Constitutional Guardrails for Pension Rights

The Delhi High Court’s judgment in Sub Krishan Kumar v. Union of India upholds the institutional discipline of the Indian Army, emphasizing that lawful orders must be obeyed, and that punishments flowing from such disobedience, if procedurally sound, are not to be interfered with.

However, the Court also sent a strong message that constitutional rights like pension cannot be denied unless statutorily extinguished, calling on the authorities to process and disburse all eligible pension benefits within stipulated timelines.

Date of Decision: 10 October 2025