2025:HHC:26653-DB IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.7688 of 2021 Decided on: 07.08.2025 _________________________________________________________________ Dr. Lavinder Kumar ....Petitioner Versus State of H.P. & Ors. …Respondents _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting? _________________________________________________________________ For the petitioner: Mr. V.S.Chauhan, Sr. Advocate with Mr. Arsh Chauhan and Ms. Preeti Steta, Advocates. For the respondents: Mr. L.N.Sharma, Additional Advocate General, for respondents No.1 to 4. Mr. Sunil Dutt Gautam, Advocate, for respondent No.5. ________________________________________________________________ Jyotsna Rewal Dua, Judge Whether recordable warning could have been issued to the petitioner without holding any disciplinary inquiry and without giving any opportunity to represent, is the question involved in this writ petition. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2025:HHC:26653-DB - 2 - 2. The case 2(i) Respondent No.5 made a written complaint to respondents No.1 to 4 on 21.04.2020 levelling allegations of misbehaviour against the petitioner. 2(ii) Respondent No.2-the Director Health Services, Himachal Pradesh, directed respondent No.3- the Chief Medical Officer, Sirmour, to inquire into the allegations levelled against the petitioner and to submit his report. Respondent No.3 orally asked the petitioner about the allegations levelled against him by respondent No.5. Petitioner was directed to submit his reply. Pursuant thereto, petitioner submitted a short reply to respondent No.3, denying all the allegations. 2(iii) Respondent No.3, on 02.05.2020, sent an office communication to respondent No.2 with following inference drawn by him alongwith his recommendations:- “INFERENCE:- Of course, it has come to the conclusion that somehow the Dr. Lavinder Kumar has apparently deemed defaulter by making irrelevant statement against the complainant to the occasion while the complainant was performing her official duty. RECOMMENDATION:- However, it is recommended that both the parties are 2025:HHC:26653-DB - 3 - directed to keep maintaining office decorum in the praiseworthy and well behaved manner after taking into consideration the social image of each and every staff while performing duty to avoid any kind of misapprehension over trivial matters.” Respondent No.3 recommended directing both the parties to ‘keep maintaining office decorum in the praiseworthy and well behaved manner after taking into consideration the social image of each and every staff while performing duty to avoid any kind of misapprehension over trivial matters’. These recommendations were reiterated by Respondent No.3 in his later communication dated 29.06.2020 to respondent No.2-the Director Health Services. 2(iv) Respondent No.1- the Secretary (Health) to the Government of Himachal Pradesh, issued a recordable warning to the petitioner on 30.10.2020 (Annexure P-6). Relevant portion from the said communication reads as under:- “…..Now therefore, after taking into consideration the aforesaid enquiry report, recommendations of the Director of Health Services as well as the facts and circumstances of the case, a recordable warning is issued to Dr. Lavinder Kumar, MO for not to repeat such conduct, maintain office decorum and behave properly in future, otherwise 2025:HHC:26653-DB - 4 - disciplinary action shall be initiated against him.” Respondent No.1 ordered issuance of ‘recordable warring’ to the petitioner for not repeating such conduct, to maintain office decorum and to behave properly in future, failing which, disciplinary action was to be initiated against him. In the above background, petitioner has preferred this writ petition. 3. Heard learned counsel for the parties and considered the case file. 4. Consideration Learned Additional Advocate General has placed on record office instructions dated 07.08.2025 from respondent No.2-the Director Health Services, H.P., in terms of which, recordable warning issued against the petitioner does not create any bar upon his promotion/increments and other service benefits including the Assured Career Progression Scheme as the same was not followed by initiation of disciplinary action; The validity of the recordable warning issued to the petitioner was only six months; Such recordable warning was issued on the basis of office 2025:HHC:26653-DB - 5 - memorandum dated 06.12.2016. 4(i) The office memorandum dated 06.12.2016 appended alongwith the office instructions dated 07.08.2025 does not give any validity period of recordable warning, therefore, to assert that validity of recordable warning is only six months, is not supported with any office circular. 4(ii) It will also be pertinent, at this stage, to take note of Dr.Gopal Bhagat Vs. Municipal corporation of Delhi and others2 where distinction between Censure and Warning was explained as under:- “14 Censure and warning may appear to be something similar in as much as the object behind both is to reprimand an erring employee. However the two have distinct connotation and perception in service jurisprudence. The penalty of censure punishes an employee for something done in the past, alleged and found proved in a process in which employee has a right to participate. Warning does not punish an employee; it puts an employee on its guard for future and is issued on facts enabling formation satisfactorily of a bonafide opinion, though such facts may be found in a process in which the employee did not have the Opportunity (much less a right) of participation. Penalty is for the past; warning is for the future. Penalty proceeds on a decision; warning wishes - let there be no occasion for a decision. 2 1995 SCC Online Delhi 599 2025:HHC:26653-DB - 6 - 15 Thus a warning is not necessarily a penalty of Censure. Warning may be oral or in writing. If it is oral, it remains a matter between the officer issuing the warning and the employee receiving it. All its efficacy is lost no sooner one of them is transferred or shifted so as to snap the proximity of relationship between the two. 16 If the warning is in writing or a recordable warning, it is in its legal implication akin to an adverse entry in the confidential records of the employee. Though the employee was not intended to be penalised yet being a recordable warning it goes in the personal record of the employee and becomes relevant for the purpose of assessing the overall performance of the employee. A recordable warning shall, therefore, have to be dealt with on lines similar to ACRs. Though no opportunity of hearing or a notice to show cause against need precede the issuance of a warning yet the employee must have an opportunity of making a representation against and such a representation if made shall have to be considered and disposed of by the authority issuing the warning or. its superior authority. This alone will be consistent with the principles of natural justice and fair play. 17. To our mind, comparatively placed the distinction between censure and warning can be brought out as under: - CENSURE WARNING (i) is a penalty (i) is not a penalty; merely conveys displeasure or disapproval of an authority. ii) must be preceded by an opportunity of showing cause against. ii) need not be preceded by an opportunity of hearing or showing cause against. 2025:HHC:26653-DB - 7 - iii) Order is final in so far as the authority passing the same is concerned iii) is available for reconsideration of by the same authority on post- decisional hearing. iv) is a pronouncement of opinion, followed by a penalty, on past (mis) conduct iv) is a warning for future foretelling an invitation to penalty, if such or similar action or conduct (though not held to be misconduct at present) was repeated.” 4(iii) Where a departmental proceeding had been completed and it is considered that the officer concerned deserves to be penalized, he should be awarded one of the statutory penalties recognized in Rule 11 of the Central Civil Services (Classification, Conduct and Appeal) Rules, 1965. In such a situation, a recordable warning should not be issued as it would for all practical purposes, amount to a “censure”. Censure is a formal punishment that can be awarded by a competent disciplinary authority after following the procedure prescribed in the relevant disciplinary rules. A warning kept in the C.R. dossier/recordable warning has all the attributes of “censure”. If the intention of the disciplinary authority is not to award a penalty of “censure”, then no recordable warning should be awarded, though there is no restriction on the right of the disciplinary authority to administer oral warning or even warning in writing which does not form part 2025:HHC:26653-DB - 8 - of character roll (Government of India Memorandum dated 16.02.1979). 4(iv) The circular dated 06.12.2016 relied upon by the respondents itself states, where a Government servant deserves to be panelized for offence/mis-conduct, one of the prescribed penalties may only be awarded. No warning recordable or otherwise should be issued to the Government servant; Where a copy of warning is kept in Annual Confidential Report dossier, it will be taken to constitute an adverse entry and the officer so warned will have the right to represent. The circular reads as under:- “Subject: CCS (CCA) Rules, 1965 - Clarification regarding effect of warning, censure etc on promotion. The undersigned is directed to refer to this Department’s O.M. No. 11012/6/2008-Estt. (A) dated 7th July, 2008 on the above mentioned subject and to say that vide para 2(iii) of the said OM, it was instructed that where a departmental proceeding has been instituted, and it is considered that a Government servant deserves to be penalized for the offence/misconduct, one of the prescribed penalties may only be awarded and no warning, recordable or otherwise, should be issued to the Government servant. However, while considering cases for empanelment, the ACC has observed that in many cases, rather than exonerating the officer or imposing a penalty on him, administrative warning is issued even when 2025:HHC:26653-DB - 9 - disciplinary proceeding were drawn against him. Administrative warning is not recognized as a penalty. 2. In view of the above, the following position as contained in various instructions issued so far on warning/Censure etc. are reiterated for strict compliance:- (i) As clarified in the Ministry of Home Affairs O.M. No. 39/21/56-Estt.(A) dated 13th December, 1956, warning is administrated by any authority superior to a Government employee in the event of minor lapses like negligence, carelessness, lack of thoroughness, delay etc. It is an administrative device in the hands of superior authorities for cautioning the Government employees with a view to toning up efficiency and maintaining discipline. There is, therefore, no objection to the continuance of this system. However, where a copy of the warning is also kept in the Confidential Report dossier, it will be taken to constitute an adverse entry and the officer so warned will have the right to represent against the same in accordance with the existing instructions relating to communication of adverse remarks and consideration of representations against them. (ii) Where a departmental proceeding has been instituted under the provisions of CCS(CC&A) Rules 1965, after the conclusion of disciplinary proceedings, the officer is either exonerated or where it is considered that some blame attaches to the officer, he should be awarded one of the recognized statutory penalties as given in Rule 11 of the CCS (CCA) Rules, 1965 2025:HHC:26653-DB - 10 - i.e. at least 'Censure' should be imposed. In such a situation, awarning, recordable or otherwise, should not be issued. (iii) Warning, letter of caution, reprimands or advisories administered to Government servants do not amount to a penalty and, therefore, will not constitute a bar for consideration of such Government servants for promotion. 3. All the disciplinary authorities In Ministries/Departments are, therefore, requested to keep in view the above guidelines while dealing with disciplinary case against the Government servants. 4. Hindi version will follow.” In the instant case a recordable warning has been issued against the petitioner, but without holding any disciplinary proceedings and without calling for any representation from the petitioner. The recordable warning has been issued against the petitioner not only contrary to the provisions of CCS (CCA) Rules, but also against the principles of natural justice. 5. In view of above discussion, present writ petition is allowed. Consequently, recordable warning issued by respondent No.1 to the petitioner on 30.10.2020 (Annexure P- 6) is quashed and set aside. 2025:HHC:26653-DB - 11 - Pending miscellaneous application(s), if any, also to stand disposed of. Jyotsna Rewal Dua Judge August 7, 2025 R.Atal