Understanding Probation in Employment
Probation, in employment parlance, is the preliminary period or testing time given to a newly appointed person or an existing employee elevated to a higher post to prove their suitability for that particular job or position in the organization. It's a common practice across Private/Public Sector Undertakings or Central/State Governments. Unfortunately, there is no specific law in our country governing the status of probationers. Hence, the confirmation of a probationer's services, if not handled judiciously and timely by the employer, can lead to perplexing questions like the one raised in the thread and yield many contradictory answers.
In the first place, there is no legal compulsion on setting a period of probation for every job. Even a new recruit can be hired directly with confirmed status if the employer so desires. However, the possibility of human error in the personnel selection process gives rise to the concept of probation. Therefore, confirmation is a status conferred upon a probationer, entitling them as a full member of the service and to all incidental employment benefits based on the employer's objective assessment of their ability, efficiency, sincerity, and competence over a fixed period. In case of unsatisfactory performance by the probationer, according to all such objective parameters, the employer has the discretion to retain them, extend their probation to enable improvement, or terminate them anytime during the probation period but before the expiry of the probation period, including any extended period.
When Confirmation Cannot Be Automatic
An employee appointed on probation normally cannot acquire confirmed status automatically unless the terms of appointment clearly indicate that confirmation would automatically follow at the end of the specified period or there is a specific service rule to that effect. In Express Newspapers Ltd. Vs Labor Court, Madras (1964 I LLJ 9), the Supreme Court held that an employee appointed on probation continues to be a probationer even after the initial period of probation until they are confirmed or their services are terminated. In another case, Dhanjibhai Ramjibhai Vs State of Gujarat (1985 II LLJ 521), the Supreme Court held that there was no right for the employee to be confirmed merely because they had completed the period of two years and passed the requisite tests and completed the prescribed training.
When Confirmation Can Be Automatic
Automatic confirmation will be presumed when the service rules limit the maximum period of probation, including any extended period, and the employee is continued in employment thereafter without being confirmed in the post. This is the ratio decidendi of the judgment of the Constitution Bench of the Supreme Court in State of Punjab Vs. Dharam Singh (AIR 1968 SC 1210).
When a Probationer Can Be Terminated
Since the services of a probationer are for a specified period only, after the successful completion of which they are to be confirmed, whether their services can be terminated due to unsatisfactory performance or behavioral issues either during the probation period or only at the end of the same would be a pertinent question. Regarding behavioral problems or any misconduct on the part of the individual, formal disciplinary action is a mandatory requirement. As regards performance, normally the form of the order of termination is only that of discharge simpliciter. However, when it is challenged otherwise, the Courts are empowered to look into the bona fides of the order. Therefore, the shortcomings in the performance of a probationer and the opportunities given to them to improve should be well-documented. However, if the contract of employment provides for termination at any time during probation, it is not necessary for the employer to observe their performance for the full period of probation before concluding their suitability and deciding whether or not to retain them in service.