dear seniors
We have an employee whose 6 months probation got ended in may 13 and now he has completed 1 year without conformation/extension letter as lot of restructuring was being done ,his performance could not be assessed . we genuinely want to give him 3 months to improve performance . can we issue extension letter for 3 more months now after 1 year or we should issue a new appointment letter?

From India, Mumbai
Industrial Relations And Labour Laws
Assistant Manager - Hr
Assistant Manager Human Resources
+3 Others

It is not proper to issue a 3 months extension letter after completion of a year +. It is the responsibility of the employer to evaluate and communicate to the employee in regular intervals where the employee is in probation & to this extent an evaluation sheet / feed back from the immediate superior / HOD is mandatory.
It is not simply to say that the probationer is not doing well but to identify and extend training to the employee to improve his skills. Strictly speaking it is the superior is responsible for poor performance of his junior. In this type of case the superior is unable to evaluate the potential of the candidate at the time of interview and unable to train him to the requirements of the organization & it is almost more than one year.
Thanks - kamesh

From India, Hyderabad
Issuing 3 Months extension letter after completion of 1 year would not stand in case this becomes a dispute. To avoid such situation in future, you should amend your appointment letter terms of probation specifying that unless confirmed in writing you will deemed to be on probation. But that period should also not be abnormally long where an employee is in suspicion about his employment status.
Rajendra Zala

From India, Rajkot
Dear Rajendra ZALA kamesh333
Thank you both for the response . You are right it should have not been done that ways and we have already amended the appointment letter for the same. But to comply with statutory regulations what should we do now ?should we issue new appointment letter .
Also can an employee be on probation for 1years and 5 months? does he automatically become permanent and while we are paying PF , esic bonus everything is there any difference on being on probation and permanent other than one month notice?

From India, Mumbai
An employee is hired on probation and if no communication is made to employee regarding extension or other action then it is deemed that employee gets the status of permanent employee.
Now you can issue him/her a letter stating his/her performance need to be improved mention specific instances.
There is no point of issue new appointment letter rather issue him/her a additional letter if you want to make any change in the appointment letter.

From India, Bhubaneswar
Thanks Abedeen7 . I appreciate the solution given by you . But could you or anyone here throw some light on what is the difference between probationer and permanent employee while probationer is getting ESIC, PF etc.
From India, Mumbai

Dear Gaurir,
The maximum probation time for an employee could be 1 Year. If the employer not regularize the services of any employee after completing 1 year of probation period, then the services of such employee is deemed as permanent employee.

From India, Delhi
I have a different opinion from what is stated by Abedeen. There is no automatic confirmation. An employee on probation is said to be on probation oonly so long as he has been communicated that he has been confirmed. Please follow the verdicts in Dinesh Kumar Mishra Vs. Union of India and ohd. Salman Vs Management Committee, and a lot of other verdicts including the one reported last month, viz, Amarnath Menokodath Remanan Vs The Chairman National Institute of Jewellery Design and others (2013 LLR 1125) in which the courts have clarified that a probationer cannot claim automatic confirmation even if he continues to perform his duties after the expiry of probationary period in the absence of any specific clause in the appointment order that he will be confirmed automatically.

Therefore, if the performance of the said employee is not up to the expectation, you can either extend the probation now or even terminate him. But while terminating please do not say the reason for termination, like " since your performance is not up to the expected level your service is hereby terminated", but just say that following clause....of the contract of employment/ appointment order, you are hereby terminated from service. In the formal case you will be inviting complications because, if you have a reason behind termination, you should have informed the employee of that reason and should have sought clarifications from him, say if the performance is bad, you should have given him warning and given him opportunities to improve his performance and termination "on the ground" of poor performance which was not communicated, will be illegal. I do not remember the case to this point, but there was a case in which a Reader or Professor of a University in Tamil nadu, if I am right(I believe Madras University only) was terminated on the ground of plagiarism during his probation period where the charge or ground of termination was stated to be plagiarism for which no memo was given and enquiry was conducted, at the same time the employer has every right to terminate a probationer without any REASON. That means if there is any REASON behind termination the employee should be aware of it and the reason should be established beyond doubt.



From India, Kannur
Dear Gaurir,

Each and every employee is issued with an appointment letter containing the terms of appointment including clause of probation period. No one has the authority to change the terms of employment/appointment unless notice of change is given as per Sec.9/9(A) of ID Act. So if the probation period has been mentioned as six months, it has to be closed after expiry of six months provided the performance is satisfactory or extended for a period of 3 months at a time by giving the employee concerned a caution letter to improve his conduct.

In the instant case, the performance of the employee(s) concerned could not be evaluated in time due to pre-occupation of the persons with whom the onus rested. It is not the fault of the employee so why should he suffer for fault on the part of management. You can rectify the delay caused by requesting the Controlling officer to assess and report their performance during the probation period and issue probation closure order on current date with retrospective effect. The probation period should not be extended as the employee was not cautioned to improve his conduct during the probation period. Giving such extension letter now will be a foul play with the employee(s) concerned for a fault which they have not committed. A fair play will speak good of management and will build an atmosphere of good relation and trust amongst the employees and managements for a long time to come. This will also help to improve IR of the establishment on whole.

Best wishes.

AK Jain

HR Personnel


From India, Jabalpur

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