A warning, not being a punishment under the rules, cannot be used to withhold promotion without following procedural requirements and giving the employee an opportunity to make representations against it.

1. By Ext. P-5 memo, dated 19th August 1980 the Commissioner of Income Tax (Appeals) administered a warning to the petitioner. It was also directed that the memo should be kept in the confidential records of the petitioner. As a consequence, when the Departmental Promotion Committee met a few days later to consider promotions to the cadre of Income Tax Inspector, the petitioner was held to be unsuitable. It is common ground that but for Ext. P-5 the Departmental Promotion Committee would have favourably considered the petitioner's case. The only question therefore is whether an order like Ext. P-5 could have validly endangered the petitioner's chances of promotion.

2. A warning is not a punishment under the Classification, Control and Appeal Rules. One of the punishments that could be imposed under the Rules is the withholding of promotion. Counsel for the petitioner contends that the warning in Ext. P-5 has been used as a ground for withholding his promotion, i. e. for infliction of a penalty, without even following the procedural requirements of the rules. As has been noticed by the Department itself in Ext. P-13, the Delhi High Court has taken the view that a recorded warning of the kind mentioned in Ext. P-5 amounts atleast to a censure, with the difference that such penalty is imposed without following the procedure required by law.

3. It is not necessary to consider this question on general principles because Ext. P-13 itself, in my view, gives the necessary guidelines. That order notices that in respect of minor lapses like negligence, carelessness, lack of thoroughness and delay, warnings are issued as an administrative device, for cautioning the employee and for toning up his efficiency. But it is also stated that where a copy of the order is required to be kept in the confidential dossier of an employee, it assumes a character different from caution or advice, for the reason that such an entry in the confidential record mars his chances of promotion. Ext. P-13 also lays down that where a warning is made part of the confidential record, as has been done by Ext. P-5 in this case, the employee should be given a right to make representation against it. Adverse entries recorded in the confidential dossier of an employee could not ordinarily be used against him in the matter of promotion unless he had been given an opportunity of making representations against it. In the light of the policy laid down in Ext. P-13 itself, therefore, it is clear that the D.P.C. could not have used Ext. P-5 against the petitioner unless it was sure that an opportunity had been given to him to make representation against it.

4. Ext. P-13 also draws a distinction between an oral warning and a written warning on the one hand, and between warnings and censures imposed under the Classification, Control and Appeal Rules, on the other. The appropriate authorities have been advised by the 3rd paragraph of Ext. P-13 not to dispose of disciplinary proceedings by giving warnings to employees, because they are likely to mar their service records for the purpose of promotion. The order insists that if an employee is found guilty and if he deserves leniancy, the minimum that should be done is to impose the penalty of censure. Even if censure is imposed as a penalty as a result of disciplinary proceedings, soon after the enquiry proceedings are over, the case of the censured employee will have to be re-examined by the D.P.C. Imposition of censure by itself does not operate as a bar to promotion. Ext. P-13 states:

"But the case of the employee concerned for promotion/ confirmation may be considered by the next D. P. C. when it meets after the conclusion of the Departmental proceedings. If the findings of the D. P. C. are in favour of the employee, he may be promoted in his turn if the penalty is that of 'censure' or recovery of pecuniary loss caused to the Government by negligence or breach of orders. In the

case of employees who have been awarded the