JUDGMENT 1. - The common issue in both the writ petitions is whether un-recorded warning is a punishment or not and if not, still the same can be considered as adverse material so as to debar a person from promotion to the post of Executive Engineer/Assistant Engineer, therefore, both the writ petitions have been heard together and are being decided together. 2. In Writ Petition No. 2329/2003, the petitioner-Hari Singh Mahla is seeking a direction to the respondent No. 1 to treat him promoted as Executive Engineer w.e.f. 19.8.1992 while his juniors were so promoted with consequential benefits and a further direction to assign him proper seniority treating his date of promotion as Executive Engineer w.e.f. 19.8.1992. The petitioner has also prayed that the respondents be directed to make payment of entire salary and other allowances of suspension period of 45 days. 3. By another Writ Petition No. 2368/2003, petitioner-L.K. Vijayvargiya has prayed that the respondents be directed to consider his case for promotion to the post of Assistant Engineer w.e.f. 14.12.1992 instead of 31.12.1993.Facts of the case of Hari Singh Mahla (SBCWP No. 2329/2003) 4. At the relevant time, the petitioner was working as Assistant Engineer when charge sheet dated 24.4.1992 levelling allegation of excitement of the Engineers to participate in the strike was issued. The said charge sheet was withdrawn on 22.4.1993 and subsequently, another charge sheet was issued on 23.4.1993. The Enquiry Officer exonerated the petitioner of the charge but the Disciplinary Authority, vide order dated 15.3.1994 warned the petitioner to remain more careful in future against which the petitioner filed an appeal without success. The petitioner was promoted as Executive Engineer on 8.5.1994 although persons junior to him were already promoted vide order dated 19.8.1992. On 19.9.1994 the petitioner was informed that his suspension period of 45 days was not wholly unjustified and, therefore, he was entitled to subsistence allowance only which has already been paid to him. Although other issues of not supplying copy of the enquiry report and representation for supplying copy of the enquiry report have been raised, which have relevance only when warning is held to be a punishment but the issue involved in the case is whether un-recorded warning is a punishment or not and if not, whether the same can be considered as adverse material so as to debar a person from promotion. 5. 5. Respondents have filed reply to the writ petition and submitted that although the petitioner was exonerated by the Enquiry Officer but the Disciplinary Authority was fully justified in imposing warning which is a punishment and even if not a punishment then adverse material which has been rightly considered while debarring petitioner from promotion w.e.f. 19.8.1992.Facts of the case of L.K. Vijayvargiya (SBCWP No. 2368/2003) 6. The petitioner herein is claiming promotion to the post of Assistant Engineer w.e.f. 14.12.1992 but the said promotion was denied to him on account of pendency of enquiry. After receipt of the reply to the memorandum of allegations dated 25.4.1992 (Anx. 4) punishment of unrecorded warning was imposed on 8.1.1993. The petitioner has 1 represented for promotion on the post of Assistant Engineer from 14.12.1992 but it was allowed to him from 31.12.1993. 7. It is stated in the reply of the respondents that because of the pendency of enquiry subsequent on account of penalty of warning the 5 petitioner was not promoted to the post of Assistant Engineer from 14.12.1992 and was thereafter promoted w.e.f. 31.12.1993. The respondents have rightly treated warning as punishment/adverse material. 8. Submission of the counsel for both the petitioners is that under Regulation No. 5 of the Employees' (Classification, Control and Appeal) Regulations, 1962 censure is a minor most penalty and warning is not a penalty. Therefore, the respondents have erred in treating warning as a penalty. Even recorded warning is treated as resulting in making adverse entry to this effect in the ACR but in the instant case warning is unrecorded and, therefore, the same cannot be treated at part with the penalty. Counsel t placed reliance on a division bench of this Court in Jagjiwan Chand Bhandari v. Registrar, Rajasthan High Court and others ( 1988(1) RLR 405 ) wherein it has been held that censure and recorded warnings are two different things. Former is a penalty whereas latter is not even a penalty. Division Bench of this Court after relying on several dictionary meanings : further came to the conclusion that censure and warning have two different connotations but speaking in service parlance the incident is same that incumbent is found 'wanting'. Proper expression for imposing the punishment is censure but none-the-less the incumbent was found wanting in conduct. Division Bench of this Court after relying on several dictionary meanings : further came to the conclusion that censure and warning have two different connotations but speaking in service parlance the incident is same that incumbent is found 'wanting'. Proper expression for imposing the punishment is censure but none-the-less the incumbent was found wanting in conduct. Therefore, the recorded warning should not be : treated as a punishment contemplated in the Service Rules but is definitely an adverse material showing lack of efficiency on the part of the incumbent. The said case is of recorded warning whereas present case is of unrecorded warning. Relevant paras No. 10, 11 and 12 Jagjiwan Chand Bhandari v. Registrar, Rajasthan High Court and others (supra) are as follows : "10. Mr. Bhandari, has next contended that the recorded warning is not a punishment as indicated in Rule 12 of the Rules of 1953 or Rule 14 of the Rules of 1958. It is true that the 'recorded warning' is not a punishment as contemplated in either Rules of 1953 or the Rules of 1958. The 'recorded warning' though not a punishment under either of the two Rules, but it is an adverse entry against the incumbent. The expression 'censure' has been defined in Webster's Third New International Dictionary as under: "Censure : a judgment involving condemnation : a Spiritual chastisement by an ecclesiastical agency b : sentence of punishment by civil or military authority; adverse judgment; the act of blaming, finding fault with, or condemning sternly, critical recension, expression of official disapproval, a resolution of a legislative body expressing disapproval of a Government official; (emphasis supplied) Censure : Estimate, Judge : to form or pronounce an opinion on : to find fault with and criticize adversely a blame worthy, with stern judgment; disapprove of or dispraise; to condemn with judicial sentence." The expression 'censure' has been defined in the Concise Oxford Dictionary IInd Edition, which reads as under: "Censure : 1. Adverse judgment, expression of disapproval, reprimand 2. v.t. Blame, criticize unfavourably, reprove; hence" 11. Likewise, the expression 'warning' has been defined by the Webster's Third New International Dictionary as under : "Warning : the action of one that warns : the action or fact of putting one on his guard by intimating danger, evil consequences of penalties from an act or course of conduct; b : the fact or state of being warned. Likewise, the expression 'warning' has been defined by the Webster's Third New International Dictionary as under : "Warning : the action of one that warns : the action or fact of putting one on his guard by intimating danger, evil consequences of penalties from an act or course of conduct; b : the fact or state of being warned. 2. Something that warns or serves to warn : to a : ADMONITION b: an example or case having a deterrent effect c : CALLING SUMMONS also; a summoning bell or other signal d : a notice from one or the other of two parties to a business relation that it will be terminated at a certain time e : a notice advising a student that his academic or social record is unsatisfactory f : a notice, bulletin, or signal that serves to caution of the approach of danger. Warning : serving as an alarm, signal, summons or admonition : announcing something imminent or impending or the presence of danger.' 12. Warning has also been defined as under in the Concise Oxford Dictionary IInd Edition: "Warning-have one's caution excited, mentally register danger. Act on a; also or esp. : that serves to warn, announce that employment is to terminate in specified time." Both the expressions i.e. 'censure' and 'warning' have different connotation. But speaking in the service parlance the incident is same that the incumbent's action is found wanting. The proper expression for imposing the punishment was 'censure'. But none the less the incumbent was found wanting in his conduct. Therefore, this warning should be treated not as a punishment as contemplated in the Service Rules. But it is definitely an adverse entry showing the lack of efficiency on the part of the incumbent. Thus, the Additional Registrar has rightly communicated this adverse entry and the same has been made part of the record of the incumbent." (emphasis supplied) 9. The present cases are of un-recorded warning. Supreme Court in State of M.P and another v. L.A. Qureshi ( 1998(9) SCC 261 ) which was a case of censure which is the minor most penalty has not agreed with the submissions of the counsel for the employee that censure is only a recorded warning and does not constitute punishment. They have further held that censure cannot be equated with warning. They have further held that censure cannot be equated with warning. In this case also, it has been held that warning is not a penalty under the Rules. Paras 7 and 8 of the judgment are as follows : "7. The submission of Shri Khanduja is that "censure" is only a recorded warning and does not constitute punishment and, therefore, the directions contained in the circular in relation to imposition of minor penalty would not apply and the Tribunal was justified in giving the directions for opening of the sealed cover and for giving effect to the recommendations of the DPC. 8. We are unable to accept the said contention of Shri 1 Khanduja. "Censure" cannot be equated with a warning since under Rule 10 of the M.R Civil Services (Classification, Control and Appeal) Rules, 1966, "censure" is one of the minor penalties that can be imposed on a Government servant. It 5 cannot, therefore, be said that the penalty of censure which was imposed on the respondent in the departmental proceedings was not a penalty as contemplated in the circular dated 2.5.1990. Once it is held that a minor penalty has been imposed on the respondent in the departmental proceedings, the direction given in the said 1C circular would be applicable and the sealed cover containing recommendations of the DPC could not be opened and the recommendations of the DPC could not be given effect because the respondent has not been fully exonerated and a minor penalty has been imposed. The respondent can only be considered for promotion on perspective basis from a date after the conclusion of the departmental proceedings." (emphasis supplied) 10. Another submission of the counsel in the case of Hari Singh is that remaining salary except the subsistence allowance for 45 days has been withheld without any justification whereas submission of the counsel for the Department is that since enquiry was going on and continuation of the suspension period of 45 days was not wholly unjustified and while reinstating petitioner Hari Singh order dated 19.9.1994 (Anx. 9) was passed under Regulation 41(2) of the Employees" Service Regulations, 1964. Regulations 41 (2) and 41 (3) read as under: "41 (2) Reinstatement after suspension, removal or dismissal; When an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specified order. 9) was passed under Regulation 41(2) of the Employees" Service Regulations, 1964. Regulations 41 (2) and 41 (3) read as under: "41 (2) Reinstatement after suspension, removal or dismissal; When an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specified order. (1) (2) Where such competent authority holds that the employee has been fully exonerated or in the case of suspension that it was wholly unjustified, the employee shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or suspended, : as the case may be. (emphasis supplied) (3) In other cases, the employee shall be given such proportion of such pay and allowances not exceeding one half as such competent authority may decide. 11. I have considered submissions of the counsel for the parties, perused record of the writ petitions and also considered rival submissions made by counsel for both the parties. 12. This Court as well as the Supreme Court have not equated even recorded warning equivalent to censure while considering pari materia service rules wherein also warning has not been specified as penalty, therefore, I am also of the considered opinion that neither warning nor recorded warning are penalties. 13. Unless the penalty is imposed, it cannot be said that suspension was not wholly unjustified. Therefore, the respondents were not justified in withholding amount of remaining salary and other allowances of 45 days in Hari Singh Mahla's case. 14. Since there was no punishment, therefore, there is no need to consider other submissions of non supply of copy of enquiry report. 15. In view of the above, the respondents are directed to-Hari Singh Mahla's case. 16. Consider case of the petitioner Hari Singh for promotion to the post of Executive Engineer w.e.f. 19.8.1992 ignoring the warning and in case petitioner is found suitable, then he may be promoted w.e.f. 19.8.1992 with all consequential benefits. The respondents are further directed to make payment of entire remaining salary and other allowances of the petitioner of 45 days within a period of three months.L.K. Vijayvargiya's case 17. The respondents are further directed to make payment of entire remaining salary and other allowances of the petitioner of 45 days within a period of three months.L.K. Vijayvargiya's case 17. Consider case of the petitioner for promotion as Assistant Engineer w.e.f. 14.12.1992 ignoring the said warning and in case he is found suitable then he may be promoted to the post of Assistant Engineer w.e.f. 14.12.1992 with all consequential benefits within a period of three months. 18. In the result, both the writ petitions are allowed as indicated above.Writ petitions allowed. *******