MADHAVAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) By Ext. P5 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. P5 the Departmental Promotion Committee would have favourably considered the petitioner's case. The only question therefore is whether an order like Ext. P5 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. P5 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. P13, the Delhi High Court has taken the view that a recorded warning of the kind mentioned in Ext. P5 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. P13 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. P13 also lays down that where a warning is made part of the confidential record, as has been done by Ext. P5 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. P13 itself, therefore, it is clear that the D. P. C. could not have used Ext. P5 against the petitioner unless it was sure that an opportunity had been given to him to make representation against it.