M.P. Menon, J.
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 at least 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 a 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 leniency, 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 minor penalty of 'withholding of increments' or 'withholding of promotion' promotion can be made only after the expiry of the penalty.
The above passage makes it clear that a censure inflicted as a regular penalty in proceedings taken under the Classification, Control and Appeal Rules cannot have the effect of automatically postponing the employee's promotion; and it is difficult to see how a warning, which is not even a punishment, and which is not given in accordance with the principles of natural justice, can stand on a better or stronger fooling in the matter of preventing an employee's promotion.
5. Exts. P-14 and P-15 (though issued only in 1981) also throw considerable light on the matter. Ext. P-14 indicates that a warning like Ext. P-5 ordinarily takes effect only at. the end of the year when alone that is elevated to the status of an adverse entry. And Ext. A-15 lays down that adverse entries made after the 3ist of March of a year shall not be used for screening an employee in the matter of promotion to vacancies occurring during that year. These are indications, in the opinion of departmental authorities themselves, that the mere existence of an order imposing some penalty on an employer will not automatically have the effect of debarring his promotion.
6. Taking into account the policy laid down in Exts. P-13, P-14 and P-15, I think Ext. P-8 order issued in this case, in so far as it fails to consider the petitioner's case for promotion, cannot be justified. The D.P.C. erred in thinking that Ext. P-5 automatically operated as a bar; it erred in thinking that a recorded warning was more damaging to an employee than censure duly imposed as a penalty. I, therefore, direct the authorities to take immediate steps to modify Ext. P-8 list in the light of the observations made-above. No costs.