Article (September-2021)

Articles

Understanding the probation & Probationer

H.L. Kumar

Designation : -   Advocate, Supreme Court

Organization : -  New Delhi

01-Sep-2021

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The expression 'probationer', its extension, confirmation or termination has given rise to a large number of judgments either of Supreme Court or High Courts. Certain ambiguities are clarified by interpreting the expression 'probationer' depending upon the given facts but sometime such interpretations have led to more controversies hence resulting into large number of cases arising again and again for judicial interpretations. The term 'probationer' is nowhere defined in any statute pertaining to labour matters except that clause (c) Order 2 of 'Model Standing Orders in respect of Industrial Establishments not being Industrial Establishment in Coal Mines' which provides as under :

"A 'probationer' is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months' service therein. If a permanent employee is employed as a probationer in a new post he may, at any time during the probationary period of three months, be reverted to his old permanent post."

It is pertinent to make reference to the fundamental judicial pronouncements pertaining to the status of a probationer. In a landmark judgment, the Constitution Bench of the Supreme Court1 has held the status of a probationer and his termination from service as reproduced below :

"The period e.g., for six months or for one year or it may be expressed simply as 'on probation' without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation, the servant so appointed on trial is found unsuitable and his service is terminated by a notice."

The Supreme Court and High Courts have relied upon the above landmark judgment by holding that the object in engaging a probationer is to test his performance and the employer can terminate his service if found unsatisfactory.2

It is thus pertinent that the employer must incorporate the probation clause in the appointment letter by adopting the following language :

In the first instance you will be on probation for a period of ……. from the date of your joining, where after the probation period may be either extended at the discretion of the management or may be dispensed with either earlier or on completion or thereafter till confirmation. Unless confirmed in writing, you will be deemed as probationer after the expiry of the initial or extended period of probation. Your services are liable to be terminated without any notice or wages in lieu thereof during the initial or extended period of probation.

As regard to period of probation, if the employer has certified standing orders, there should not be conflict between the standing orders and the appointment letter particularly about period of probation since the terms and conditions of employment in the certified standing orders cannot be more than as contained in standing orders. For instance if the certified standing orders provide that the services of a worker cannot be retained on probation for more than six months whereas the appointment letter provides probation period nine months and if the probationary services of an employee are terminated after six months the termination will be illegal.3 The Allahabad High Court has held that when the terms and conditions of service in appointment letter are inconsistent with standing orders, the latter will prevail.4

https://www.businessmanager.in/uploads/1630467449probation.jpg

Extension of probation period

In the light of the conditions which had been specified even in the letter of appointment and in as much as the probation was not extended subsequently, it cannot be said that there is any deemed confirmation in this regard. This view taken by court is in consonance with the Standing Orders of the Management and also the consistent view expressed by the Apex Court in several decisions.5

If an employee did not question her first or second extensions, she is not entitled to challenge the consequences of  her poor assessment at belated stage at the time of termination of her services on account of unsatisfactory performance. Even if an order of termination simpliciter brings on record some preliminary enquiry regarding allegations against the probationer that will not vitiate order of termination. The appointing authority is entitled to look into any complaint made in respect of the probationer while making assessment of his performance regarding his confirmation.6

Confirmation of a probationer

In the absence of rules, if the contract of employment has fixed a particular period of probation and on expiry of the said period, the employee still continues in service, and then the implications are that he continues as a probationer. This amounts to an implied extension of the probation period. Otherwise, it is well settled that a probationer continues to be on probation until he is confirmed.7 A probationer can be terminated from his services any time before confirmation provided that such termination is not stigmatic.8 Confirmation of a probationer will not be deemed till a specific confirmation order is received by him.9 Extension of probation period means performance not up to the mark.10 Even when a person is continuing beyond the probationary period of any order, he does not become a permanent employee.11 Also, in the absence of ceiling about the period of probation, a probationer remains on probation even after period of probation, as held by Delhi High Court.12 The absence of any provision for extension of the period of probation in the terms and conditions of service, does not necessarily mean that the Government has no powers to extend the period. An employer, has always an implied right to extend the probation period till it is satisfied that the probationer is fit for confirmation.13 In another case, a Bench of the Apex Court has held that by continuation in service after expiry of the probation period, a probationer cannot be deemed to be confirmed.14

The Delhi High Court has also followed the above judgment in holding that there is no right in the probationer to be confirmed merely because he had completed the period of probation.15
Even when a probationer has crossed the specified period of probation, he will not be deemed to be confirmed and as such his termination after the expiry of the probation period will neither be unjustified nor illegal, particularly when no maximum period of probation has been prescribed.16

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