Warning issued after departmental inquiry, is it penalty?

[Anonymous]

Myself working as a civilian in defence department of govt of India. A departmental inquiry was conducted against me for major penalty. Since there was no evidence to support charges, the inquiry was closed but still the disciplinary authority has issued “warning” to me to be careful in future. Is it penalty under the rules and do I have to challenge it under rules?

[Dr. Ashok Dhamija]

Firstly, “warning” is not a penalty under the Central Civil Services (Classification Control And Appeal) Rules. The minimum penalty under the said Rules is that of “censure”.

In fact, there are directions of the government of India laying down that: “It is also clarified that in a case where disciplinary proceedings have been held under the relevant disciplinary rules ‘warning’ should not be issued as a result of such proceedings.  If it is found, as a result of the proceedings, that some blame attaches to the Government servant, at least the penalty of ‘censure’ should be imposed.”

Therefore, there are specific directions of the government of India that “warning” shall not be issued as a result of the departmental proceedings. These guidelines appear to have been violated in your case. You may bring this fact to the notice of the concerned disciplinary authority so as to take corrective action.

Further, as per the directions of the government of India, following is the difference between censure and widening:

“Distinction between Censure and Warning :-  

An order of “Censure” is a formal and public act intended to convey that the person concerned has been guilty of some blameworthy act or omission for which it has been found necessary to award him a formal punishment, and nothing can amount to a “censure” unless it is intended to be such a formal punishment and imposed for “good and sufficient reason” after following the prescribed procedure.  A record of the punishment so imposed is kept on the officer’s confidential roll and the fact that he has been ‘censured’ will have its bearing on the assessment of his merit or suitability for promotion to higher posts.

There may be occasions, on the other hand, when a superior officer may find it necessary to criticise adversely the work of an officer working under (e.g. point out negligence, carelessness, lack of thoroughness, delay etc.) or he may call for an explanation for some act or omission and taking all circumstance into consideration, it may be felt that, while the matter is not serious enough to justify the imposition of the formal punishment of ‘censure’ it calls for some informal action such as the communication of a written warning, admonition or reprimand, if the circumstances justify it, a mention may also be made of such a warning etc., in the officer’s confidential roll; however, the mere fact that it is so mentioned in the character roll does not convert the warning etc. into “censure”.  Although such comments, remarks, warning etc., also would have the effect of making it apparent or known to the person concerned that he has done something blame-worthy and, to some extent, may also effect the assessment of his merit and suitability for promotion, they do not amount to the imposition of the penalty of ‘Censure’ because it was not intended that any formal punishment should be inflicted.

The fact that a mere informal ‘warning’ cannot be equated to a formal ‘censure’, should not, however, be taken as tantamount to suggestion that a written warning may be freely given without caring whether or not it is really justified.  It is a matter of simple natural justice that written warnings, reprimands, etc. should not be administered or placed on an officer’s confidential record unless the authority doing so is satisfied that there is good and sufficient reason to do so.  Paragraph 6 of the Home Ministry’s Office Memorandum No. 51/5/54-Ests.(A) dated the 27^th January, 1955 provides detailed guidance in the matter of recording adverse remarks in confidential reports.  It may be reiterated here that in the discharge of the responsible task of recording the confidential reports, every reporting officer should be conscious of the fact that it is his duty not only to make an objective assessment of his subordinates’ work and qualities, but also to see that he gives to his subordinates at all times the advice, guidance and assistance to correct their faults and deficiencies.  If this part of the reporting officers’ duty has been properly performed there should be no difficulty about recording adverse entries because they would only refer to the defects which have persisted in spite of reporting officer’s efforts to have them corrected.  If after having taken such care the reporting officer finds that for the purpose of truly objective assessment mention should be made of any warning, admonition etc. issued, especially those which have not produced the desired improvement, it is his right and duty to so mention them.  In process of brining the defects to the notice of person concerned, where an explanation is possible an opportunity to do so should be given.  This cannot, however, be equated to formal proceedings required to be taken under Rule 55-A (now rule 16) of Rules, nor the warning given amounts to the imposition of a formal penalty.

[MHA OM No. 39/21/56-Ests.(A) dated the 13^th December, 1956].”

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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