Is it possible for an employer to extend probation without informing the employee?
There is no probation extension clause mentioned in the employment contract letter. If the company extended the probation without informing the employee and later terminated him for performance issues, is it possible to move legally?
Below is the clause on probation:
"You shall serve a probation period of 3 months during which either party may give 7 working days' notice of termination, and your entitlement to all employment benefits will be at the discretion of the company."
From India, Mumbai
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There is no probation extension clause mentioned in the employment contract letter. If the company extended the probation without informing the employee and later terminated him for performance issues, is it possible to move legally?
Below is the clause on probation:
"You shall serve a probation period of 3 months during which either party may give 7 working days' notice of termination, and your entitlement to all employment benefits will be at the discretion of the company."
From India, Mumbai
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But the company extended probation without informing the employee. And later terminated him. In such case how to deal with that.
From India, Mumbai
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From India, Mumbai
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You may take up the case legally. Consult a lawyer who has a strong background in labour laws.
From India, Aizawl
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651From India, Aizawl
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Hello,
In my opinion, in the present case, the extension of the probation period has to be informed in writing. Furthermore, it cannot be extended as there is a clause of only a 3-month probation, and there is no specific clause in your letter authorizing the employer for the extension of probation.
The legal remedy would be under the Industrial Disputes Act 1947, provided the probationer falls under the category of workmen; else, the remedy would be in the civil court for compensation.
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In my opinion, in the present case, the extension of the probation period has to be informed in writing. Furthermore, it cannot be extended as there is a clause of only a 3-month probation, and there is no specific clause in your letter authorizing the employer for the extension of probation.
The legal remedy would be under the Industrial Disputes Act 1947, provided the probationer falls under the category of workmen; else, the remedy would be in the civil court for compensation.
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In the Order of Appointment itself, there should be a clear mention of the period of probation. If the term "initial period of probation" is used, it should be accompanied by a note specifying the possibility of extension for the probationary period, including the number of times such an extension can occur.
Any extension of probation without meeting these prerequisites is challengeable in a court of law.
From India, Chennai
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Any extension of probation without meeting these prerequisites is challengeable in a court of law.
From India, Chennai
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Dear CIM-Operations,
In the above case of Sreejith-Sreedhari, the probation clause does not contain the phrase "initial period of probation." Hence, in all probability, after the completion of 3 months from the date of joining, the probationer shall be deemed to have confirmed unless otherwise notified by the company about an extension of probation. Therefore, termination after probation without giving any notice or intimation amounts to a clear violation of labor laws by the company.
Thank you.
From India, Aizawl
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In the above case of Sreejith-Sreedhari, the probation clause does not contain the phrase "initial period of probation." Hence, in all probability, after the completion of 3 months from the date of joining, the probationer shall be deemed to have confirmed unless otherwise notified by the company about an extension of probation. Therefore, termination after probation without giving any notice or intimation amounts to a clear violation of labor laws by the company.
Thank you.
From India, Aizawl
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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.
From India, Salem
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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.
From India, Salem
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Dear Umakanthan Sir, many thanks for the above-detailed write-up, which was very informative. Could you please clarify the "service rules" you mentioned under "When confirmation can be automatic?" Is it the duration mentioned in the employment contract or something specified under labor law?
Because in my contract letter, "You shall serve a probation period of 3 months during which either party may give 7 working days' notice of termination, and your entitlement to all employment benefits will be at the discretion of the company."
Thanks,
Sreejith
From India, Mumbai
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Because in my contract letter, "You shall serve a probation period of 3 months during which either party may give 7 working days' notice of termination, and your entitlement to all employment benefits will be at the discretion of the company."
Thanks,
Sreejith
From India, Mumbai
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Though our discussion on probation has started from your own case, it covers the probationary status of all cadres of employees such as workmen and managers. Basically, all employment rights and obligations arise from the contract of employment between the employer and the employee. For the sake of brevity, certain terms of the contract are cited to be according to the service rules or regulations applicable to the cadre. These terms can be any particular terms only found in the appointment letters, standing orders, or service regulations. This is what I meant by "service rules." For example, the relevant rule in the standing orders may specify that the period of probation be a certain number of months/years within a continuous period of a certain number of months/years, and if it is not declared within such a period that the individual has successfully completed the probation period, it shall be deemed that he has successfully completed the probation period.
Your Contract and Employer's Discretion
Coming to your contract, the discretion vested with your employer indicates that he can confirm you on completion of 3 months or extend it further.
From India, Salem
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Your Contract and Employer's Discretion
Coming to your contract, the discretion vested with your employer indicates that he can confirm you on completion of 3 months or extend it further.
From India, Salem
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Dear Umakanthan Sir, thank you for your response. I appreciate your detailed explanation on this matter. There is no specific mention of the extension of probation in the clause below. Could you please clarify how they can extend probation despite the language in the clause?
"You shall serve a probation period of 3 months during which either party may give 7 working days' notice of termination, and your entitlement to all employment benefits will be at the discretion of the company."
My probation period of 3 months ended on December 15, 2019. The company never provided me with a letter of confirmation or extension of probation. On February 24, 2020, they issued a termination letter based on performance. It was only then that I was informed about the extension of my probation. Due to the lockdown situation, I am in urgent need of a job and thus considering if I can challenge their decision. For the sake of fairness, they should have informed me of any shortcomings or given me an opportunity to explain, which unfortunately did not happen.
Thank you for your time and your response.
Best regards, [Your Name]
From India, Mumbai
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"You shall serve a probation period of 3 months during which either party may give 7 working days' notice of termination, and your entitlement to all employment benefits will be at the discretion of the company."
My probation period of 3 months ended on December 15, 2019. The company never provided me with a letter of confirmation or extension of probation. On February 24, 2020, they issued a termination letter based on performance. It was only then that I was informed about the extension of my probation. Due to the lockdown situation, I am in urgent need of a job and thus considering if I can challenge their decision. For the sake of fairness, they should have informed me of any shortcomings or given me an opportunity to explain, which unfortunately did not happen.
Thank you for your time and your response.
Best regards, [Your Name]
From India, Mumbai
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