Service Matters

Probation

Normally every employer appoints its employee on probation which is actually testing period.

Objective of Probation

During this evaluation period employer checks employee’s devotion towards duty and efficiency.

The Hon’ble Surpeme Court held that main object of this period is to guard error of human judgment in process of selection.

Probation Period

During observation period employee’s selection against permanent post is subject of his performance in his job.

Employer can fix time period for observation. The Employer can fix the period six month or more, it is up to employer.

Means employer may fix this period up to two years. In many Government Organization we find such period of two years.

Confirmation after Probation

The second stage is confirmation. Employer confirmed its employee after completion of this period.

After confirmation employee becomes permanent employees and the employer need to hold proper enquiry before passing termination order.

Probation on Temporary Post

In recent past years, employer is advertising temporary post and mentioning specifically that post may become permanent.

Appointment on Probation

In the present trend employer are making appointment temporary basis  first then after making confirmation.

If employer found the performance of employee is poor then it may extend this period.

Termination during Probation

Many people have query about the termination during the testing period. Employer must issue show cause notices for improving performance.

Ever after issuance of notices for improving performance, if the employee failed to improve his performance.

Employer can pass termination Order without assigning any reason on unsatisfactory performance of employee.

If the employer failed to issue show cause notices for improvement of performance, termination order will not have legality.

Departmental Proceedings during probation

There is not bar on holding disciplinary proceedings during observation, if the employee commits misconduct.

But once the employer issued Memorandum of charges, appointing authority must conduct full fledged inquiry in order to terminate the employee during this period.

Supreme Court has already settled law that Employer should pass no termination without departmental enquiry.

Supreme Court Orders on Probation

In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520; the Hon’ble Supreme Court determined as to whether the termination order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this court in paragraph 21 of the aforesaid decision it was stated by this Court thus:-

"21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld."

Conclusion

Conclusively we can say that if employer want to terminate the services of any employee during his probationary period in order to recruit new good employee.

Employer need not to extend the period fixed for observation of employee. However, if termination is passed on misconduct, negligence or memorandum of charges, the protection provided under Article 311 of Constitution of India will be attracted.

Frequently Asked Questions

1.    Is Departmental proceedings is necessary even for terminating services of Probationer ? 

Answer: Yes, Even if employer wants to terminate probationer on the grounds of misconduct, a regular departmental proceedings is a must and failure shall attract Article-311 of Constitution.

Case Reference : Anoop Jaiswal versus Government of India, AIR 1984 SC 636

2.     Does probationer has right to be confirmed after completion of probationary period ?

Answer:  A probationer has no legal right to be confirmed. His services can be terminated on expiry of the probation period if the same is not found to be satisfactory.

Case Reference : Arun Kumar Singh versus State of Bihar, 1993 (1) PLJR 106

3.     What is the objective of Probation period ? 

Answer:   The Supreme Court has held that the objective of probation is to guard error of human judgment in process of selection.

Case Reference: Ajit Singh versus State of Punjab, AIR 1983 SC 494

4.     If probationer completes maximum three years of probation, whether the employee will be deemed to be confirmed on the post by implication. 

Answer. Yes, The Supreme Court held if any probationer completes maximus three years of probation provided under their rules, then the probationer shall be deemed to be confirmed on the post by implication.

Case Reference : State of Punjab versus Dharam Singh, AIR 1968 SC 1210 

Important Question on Legal disputes

5.    Whether Probation period is applicable to Temporary post ? 

Answer: Yes, Employer can place an employee under probation even on temporary appointment. But it does not mean that employer will confirm that employee.

Case Reference: Union of India versus  AK Roy, ATR 1986 SC 61

6.   Whether probation period to be counted for the purpose of Seniority ?

Answer: The period of service rendered by a probationer will not be ignored in usual course unless rules provide contrary.

Case Reference : S.B. Patwardhan versus State of Maharashtra, AIR 1977 SC 2051

7.    Whether confirmation is matter of right after completion of probation period ?

Answer : No, Automatic confirmation is not matter of right because in terms of the rules, if work is not satisfactory which in a pre-requisite or pre-condition for confirmation.

Case Reference : Registrar, High Court of Gujrat versus C.G. Sharma, AIR 2005 SC 344