Can We Terminate for Misconduct During Probation in Karnataka Without Legal Issues?

Hi all, I have one query related to industrial disputes in Karnataka State. Can we terminate an employee for misconduct during their probation period? Or do we have to pay anything while terminating during the probation period as per Karnataka labor laws/acts?

Probation Period Standing Orders

What are your company's standing orders during the probation period? Is there any notice required during the probation period?

If yes, then you have to pay the notice period salary. As per labor law, you have to pay unpaid wages as well as earned leaves for probationary employees.

Regards

Your quick reply is highly appreciated, but can you please elaborate on the compensation part? Yes, we have a 3-month notice period under the probation period.

Until a probationer is issued a confirmation letter in respect of his services, he would be deemed to be on probation, irrespective of the expiry of his probationary period. In a recent ruling in the case (W.P.(C) No. 4929/2013, D/-18-9-2013) of Amarnath Menokodath Remanan vs. The Chairman, National Institute of Jewelry Design and Ors., the Delhi High Court has ruled that it is the prerogative of the employer to decide if the services of the probationer are satisfactory and not by the Court. No show-cause notice is required to be served upon a probationer before terminating his services.

The court has ruled that a probationer cannot claim automatic confirmation of his probationary services even if he continues to perform his duty after the expiry of the probationary period, in the absence of any express condition of his service in his employment contract, i.e., his employment letter. Until a probationer is issued a confirmation letter in respect of his services, he would be deemed to be on probation, irrespective of the expiry of his probationary period.

When the adequacy of the performance of all probationers, including the petitioner, was reviewed by a committee, the plea of the petitioner that he has been discriminated against is not justified.

Regards,
Arun Ilankovan

In your subsequent query, you have clarified that you have a three-month notice period for employees who are on probation. Now, there are two situations:

Termination Due to Misconduct

(i) If you want to terminate him on the grounds of misconduct, you must give him a charge sheet elaborating his misconduct and conduct an independent inquiry into the charges by following the principle of natural justice. If he is found guilty of the charges, you can terminate him as punishment.

Termination Simpliciter

(ii) Alternatively, you can terminate him by paying three months' salary by virtue of the termination clause contained in his appointment letter, which is called Termination Simpliciter. What I have said is common law prevailing in our country and should not be very different for the state of Karnataka. Such matters depend more on the certified standing orders of the company and the terms & conditions of the appointment or service contract of the employee.

Regards,
BS Kalsi
Member since Aug 2011

Mr. Kalsi has explained your query well. In general, the probationary period will be 6 months to one year and is extendable for a further period of 6 months maximum. During the probationary period, normally either party can give one day notice for termination of employment and one or two months after confirmation in writing. If you have mentioned the notice period as three months for either party, then you have to follow it. Termination of employment based on the findings of the enquiry officer does not require any notice period. However, you have to prove his misconduct before termination. No compensation is needed to be paid for such termination. At the same time, you should have one more clause that states, "In case of dissatisfaction with your performance during the probationary period, the management shall have the right to terminate your service without giving or assigning any reasons." This will be a positive point in case you want to terminate during the probationary period. Take care in the future to include this clause to avoid such situations. In this case, you can opt for any one of the advice given by Mr. Kalsi.

Regards,
Adoni Suguresh

Sr. Executive (Pers, Admin & Ind. Rels) Rtd
Labour Laws Consultant

In case of an employee misconducting during the period of probation, you have to issue a formal chargesheet to them and hold a proper domestic inquiry, allowing the chargesheeted employee to provide their point of view and defend themselves. Once the charges are fully established, the service of the employee can be terminated.

Latest Trends in Employee Termination

As per the latest trend, "suo moto termination of service or discharge simpliciter does not hold good and, besides compensation, it may lead to litigation culminating in the reinstatement of the employee concerned with full back wages and other benefits, whatsoever.

Accordingly, please do not take a chance and follow the prescribed procedure.

Regards,
S.K. Johri

Do not look at this issue from the point of view of law. The courts would view the matter with sympathy towards the employee, though very few today opt for court action. If you give notice of three months, do you think you can get the best out of him during the period? If you pay compensation and send him off, how would other employees view the management?

Explain all this to the deciding authority and then let him decide.

Regards,
Kannan

I have one query related to termination. I was working in a (BPO) PVT LTD COMPANY. From the last 3 months, my joining date was 7th April 2014, and I was terminated on 4th August 2014. According to the company's offer letter, the probation period is 4 months. Now, they didn't give me any prior notice before terminating, and I was told to collect my salary cheque after 45 days. I just got an email from the company's email ID saying, "Contact us after 45 days for full and final if any."

The reason for my termination is plotting against the company, misbehavior, etc.

Now, my query is do I have to wait for 45 days to receive my salary according to labor law? And I didn't sign any documents yet like full and final, etc.

Thanks,
Anuj Bhatia

Once you call it misconduct, you have to give an opportunity to the person to explain his or her stand. There cannot be a one-sided decision on misconduct under the law, whether the person is on probation or not. This is the law as per the ID Act 1947. No state law can dilute this. You may try for a mutual settlement by asking the person to resign.

Regards,
Kannan

Before terminating the employee, you should ask him for resignation. If he has not submitted his resignation, then you have to terminate him in a polite manner. The company has to pay three months of basic/gross salary as per company norms.

Regards,
Eswar-HR
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