Dinesh Divekar
Business Mentor, Consultant And Trainer
Consultancy_hr & Ir
+2 Others

Dear All,

One of my friends had been working for a company in a Managerial profile for the past 2 years.They have suddenly terminated him without assighning any reason stating that he is still a probationary employee.The offer letter stated that he will be on a probation period of 6 months and he will be confirmed in writing. But my friend says that he has not recieved any extension of probationary period letter after the 6 months time nor it has been stated in the offer letter that after the probationary period of 6 months it may automatically be extended to 3 / 6 months etc.He has managed to get a copy of the Process Circular of the company which clearly states that the probationary employee has to recieve a extension of probationary letter after 6 months if not confirmed and it has to be duly sighned by the employee. It is also stated in the circular that a maximum of two extensions of 3 months each is allowed.

Will he get justice in this case because it is a clear case of negligence and harrasment by the company officials , where they have not followed the process set by them. Can the company be set scott free on the ground that it is not necessary for them to abide by the procedures set by them ?

My point is how can there be an implied indefinite period of extension of probation period ??? This amounts to the fact that even if an employee works for 10 years in the organisation , he will still considered as a probationary employee because the company has not issued a letter in writing !!!

I invite all the members to please give their valuable inputs on this case, and the possibility of justice being given to the agrieved party.

From India, Bhubaneswar

Dear Rajeev,
From my point of view his dismissal is illegal. He can approach the labour court and challenge the dismissal. A probationer when completes 1 year or more has to be confirmed or removed from the job. If employee does not receive any written communication, he is deemed as confirmed in his/her employment.
The above views are my personal. However, Mr Madhu TK, Mr Malik JS or Mr Vasant Nair can answer your query correctly.
From India, Bangalore

I beg to differ with Mr. Divekar and my reasons are:

The person concerned is reported to be in a managerial profile. If he he is indeed not a "workman" under the Industrial Disputes Act 1947, then he has no possibility of litigating over the issue.

Further, even if he a "workman" under the Industrial Disputes Act only the fact of Industrial Employment (Standig Orders) Act 1946 can help benefit of Clause 4-C of the act which states that "if a workman completes more than 240 days within a span of preceding 12 months, he will have to be confirmed by the organization."

But whether he is a workman under the said act or not, is decided by the facts of job responsibilities attached to his job. It is neither the title (designation) nor the pay, are by themselves adequate to deteremine the status of his employment.

Under the cnditions, if he does, however, wish to contest the position he finds himself in, he may approach the conciliation machinery under the Industrial Disputes Act claiming himself to be a "workman". Since, fortunately the Conciliation Officer under the act has NO authority to decide the dispute, he can, at best, concilaite between the disputants to resolve the matter. If he fails, based on his "failure report" the state government has the responsibility to "refer" or to "not refer" the dispute to an appropriate court constituted under Industrial Disputes Act. If the govet. refuses to "refer", the gentleman in question may have to approach concerned High Court to get the grievance redressed-with no guarantee of getting what he wants! If however, the govt does refer to dispute, the court will have to decide, as a "priliminary issue" the status of this gentleman, as the management will claim precisely this and the court may not be able to deny this request. Again further course will depend upon the court's verdict on this issue!

The long and short of this scenario is that the matter will consume considerable time and money and in my opinion, if the gentleman's profile is indeed "managerial", the chances of winning an argument are virtually NIL!

Decide what you wish to proceed with.

Cheers and Regards


August 28, 2010

From India, Pune
Dear All,
Thank you very much for providing valuable inputs on the case !
The person was engaged in a Financial Servvices Company, will it qualify under Industrial Disputes Act 1947 ?If yes what are the parameters to qualify as a workman ?
I would like to invite Mr Madhu TK, Mr Malik JS & Mr Vasant Nair to give their views on possible rights of the employee and legal recourse to follow to get justice.
From India, Bhubaneswar
Dear Seniors, Greetings of the day. Can you please share your cell No. to discuss the same issue? Hoping an early reply from you all. Regards
From India, Mumbai
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