The warning given to the appellant did not amount to a punishment depriving him of promotion, and the appellant's case for promotion should not have been ignored based on the warning and the relevant regulation.

1. Heard counsel for the parties and perused the order impugned.

2. Prayer of the writ petitioner appellant to grant promotion from 1.2.2002 on the post of Chief Engineer was rejected by the respondent Bihar State Electricity Board (hereinafter referred to as the Board).

3. The writ petition filed by the appellant was dismissed by the order im- pugned mainly on the ground that since punishment of warning was awarded and entry was made in the ACR, the writ petitioner appellant would not be entitled even for notional promotion.

4. Learned counsel for the appellant submitted that it is admitted fact that there was no departmental proceeding or crimi- nal case pending against the appellant on the day the first DPC took place i.e. on 22.1.2002. It is further submitted that an explanation was called for from him vide Boards letter no. 4193 dated 22.12.2001 on the question of irregular payment towards Switch Yard at Koshi Hydel Power Station. He submitted his explanation vide letters no. 2232 dated 29.12.2001 and 167 dated 11.2.2002. The explanation so furnished by the appellant was accepted. However, a warning was given and the same was entered in the ACR for the year 2000-2001.

5. It is further submitted that the Board by resolution, adopted the provisions of Civil Services (Classification and Appeal) Rules (hereinafter referred to as the Rules) and under Rule 49 of the Rules, warning is not one of the punisments and, therefore, warning would not amount to punishment depriving the appellant to get promotion and the learned Single Judge of this court, in this view of the matter, was not justified in holding that the punishment so awarded would be sufficient to debar the writ petitioner appellant from promotion.

6. Learned counsel for the respondents, however, submitted that in view of Rule 86 of the Bihar State Electricity Board Service Regulation, 1976 (hereinafter referred to as 1976 Regulation), the appellant was considered not eligible for promotion in the first DPC held on 22.1.2002 as certain irregularities were found towards payment made by him and an explanation was called for prior to 22.1.2002. It is also submitted by learned counsel for the respondents that in view of resolution of the State of Bihar dated 17th May, 1982 the effect of warning would be for one year during which period promotion would not be permissible.

7. In the order impugned Rule 86 of 1976 Regulation has already been quoted according to which no employee of the Board shall be promoted if, prima facie, charges of corruption, bribery, gross negligence, misappropriation, or any other charges involving lack of integrity, serious lapse of duty and acts of indiscipline are pending enquiry or any departmental proceeding is being conducted.

8. From the materials on record and the counter affidavit filed on behalf of the respondents in the writ application, it would be evident that merely an explanation was called for from the writ petitioner appellant for irregular payment which was denied by the appellant and ultimately he was warned.

9. It does not appear that the appellant was involved in any manner in a case covered under Rule 86 of the 1976 Regulation nor on the day the DPC was held, any enquiry or departmental proeeding was pending against him. Merely asking of explanation would not amount to an enquiry nor departmental proceeding. This being the situation, the case of the appellant could not have been ignored for promotion on the first day of DPC on 22.1.2002.

10. Besides these, it would be manifest that in view of Rule 49 of the Rules, warning cannot be said to be one of the punishments nor the resolution of the State of Bihar of the year 1982 would supersede the statutory provisions of law as referred to above.

11. Admittedly, the writ petitioner appellant was warned on 19.6.2002 and he superannuated with effect from 30.6.2002.

12. In view of the circumstances as referred to above, the findings recorded by the learned Single Judge of this cour