Letters Patent Appeal No.774 OF 2001 --------- Against the judgment and order dated 13.7.2001 passed in CWJC no.6346 of 2000 -------- NAGESHWAR PRASAD--------------------------------------------------(Appellant) Versus THE STATE OF BIHAR & ORS----------------------------------------(Respondents) For the appellant: Mr Ram Hriday Prasad For the respondents: Mr Shashi Bhushan Kumar SC 16 P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE J.N.SINGH Barin Ghosh & J.N.Singh, JJ The appellant secured a State Government employment in the post of police constable. While he was a probationer in the said employment, a warrant of arrest was issued against him alleging that he, then a Central Government employee in his capacity as a constable in the Central Reserve Police Force, had deserted his force. This resulted in bringing to an end the probation of the appellant in his State Government employment in the capacity of police constable. That was the subject matter of challenge in the writ petition. The writ petition having been dismissed, the appellant is before us. It is the contention of the appellant that the order terminating his service contains stigma and inasmuch as the said order had not been passed upon giving an opportunity of hearing to the appellant or by taking recourse to a - 2 - disciplinary proceeding, the order is invalid. A probation can be brought to an end without making any aspersion against the probationer. Bringing to an end probation by such an order would, in law, be construed as reflection of dissatisfaction of the employer as regards service rendered by the probationer upto the period he remained on probation. The moment, however, the probation is brought to an end by expressing aspersions in the conduct of the probationer, while on probation, the same can not, in law, be construed as an expression of dissatisfaction of the employer of the service rendered by the probationer during the period he was permitted to work on probation, a probation brought to an end in view of aspersions as reflected in the order terminating probation would stigamatise the probationer .A stigma affecting right to employment can not be attached uliterarily. Law requires the person, against whom such aspersions are being made, to not only know the reasons for making such aspersions but also an opportunity to defend the same. If the reasons are then substantiated, the right to employment can be interfered. As a result a probation can not be brought to an - 3 - end by making aspersions against a probationer without taking recourse to the procedure mentioned above. However, it is necessary, in the facts and circumstances of the admitted case, to ascertain whether the statements made in the order terminating probation can be said to be aspersions against probationer or not. In the instant case, the word “dishonest” has been used in the order bringing to an end the probation of the appellant. It had been alleged in the order terminating the probation of the appellant that he obtained the employment in the State Government by adopting dishonest means. At the same time the order clearly holds out that said dishonesty is suppression by the appellant of the fact that at the time he obtained the employment in the State Government, he was a Central Government employee. The fact that the appellant was a Central Government employee as on the date he obtained the employment in the State Government is not in dispute. That being the situation, mere use of the word “dishonesty” or the words “dishonest means” in the order terminating probation of the appellant, can not be said to be attachment of any aspersion or stigma against the appellant, - 4 - the same, being the logical conclusion of the said known facts. Learned counsel for the appellant submitted that the advertisement did not mention that a Central Government employee can not apply for the advertised State Government employment. Learned counsel for the appellant further submitted that the fact remains that before joining the State Government, the appellant had submitted his resignation from the employment of the Central Government. In those circumstances, the manner in which the order terminating probation of the appellant had been passed should be deemed to contain stigma against the appellant. There is no dispute that an employee of the Central Government may evince an intention to obtain employment in the State Government, but a Central Government employee, while is such an employee, can not be a State Government employee and if he does so and accordingly, becomes employee of both the Governments, he cheats both his employers, for he is not in a position to discharge the duties attached to both of his posts at the same time. No doubt the appellant had submitted his resignation from his - 5 - employment in the Central Government before joining the employment in the State Government but the fact remains that by putting up such resignation appellant could not put to an end his employment, nor could relieve himself of the duty attached to the employment. If he could do so then all the members of the Armed force of the State, at the time of their requirement, by submitting resignation can shirk of their responsibility of serving the society, for which they had been appointed. In the circumstance, a resignation will not entail putting to an end the employment or relieving the person. Acceptance of resignation of those employees of the State, who work in the Armed Force of the State, would bring to an end their employment and relieve them. In the circumstances, there is no scope to interfere with the impugned order. This appeal fails and is dismissed. (Barin Ghosh, J) ( J.N. Singh, J) The Patna High court The 10th July,2008 Shahid/AFR