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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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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As per the appointment letter - probation clause - you shall be on probation for a period of three months from the date of your joining the company. If 3 months have passed (i.e. probation period), the employee concerned shall be deemed to be confirmed with the services of the company.
From India, Aizawl
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699From India, Aizawl
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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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From 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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Dear Sridhar,
Termination for non-performance, even of a probationer, is illegal if effected without following the disciplinary procedure. You can raise an Industrial Dispute.
- Shobhit Kumar Mittal
Industrial & Labour Law Advisor
8077779793, 9319956443
skmittal.labourlaw@gmail.com
From India, Faridabad
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Termination for non-performance, even of a probationer, is illegal if effected without following the disciplinary procedure. You can raise an Industrial Dispute.
- Shobhit Kumar Mittal
Industrial & Labour Law Advisor
8077779793, 9319956443
skmittal.labourlaw@gmail.com
From India, Faridabad
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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 his suitability for that particular job or position in the organization. It's the practice everywhere - Private/Public Sector Undertakings or Central/State Governments. Unfortunately, there is no specific law in our country governing the status of probationers. Hence confirmation of the services of a probationer, if not handled by the employer judiciously and timely, would certainly lead to a baffling question like the one raised in the thread and yield many answers contradictory to one another.
In the first place, there is no legal compulsion on setting a period of probation for every job. Even a new recruit can be straight away hired on confirmed status, if so desired by the employer. However, the possibility of error of human judgment in the personnel selection process gives rise to the concept of probation. Therefore, confirmation is a status conferred upon a probationer entitling him as a full member of the service and to all incidental employment benefits based on the objective assessment of the employer about his ability, efficiency, sincerity, and competence over a fixed stretch of time. In case of unsatisfactory performance by the probationer by all such objective parameters, the employer has the discretion to retain him, extend his probation so as to enable him to improve upon or terminate him anytime during the period of probation but before the expiry of the period of probation including the extended period, if any.
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 he is confirmed or his services are terminated. In yet another case later viz., Dhanjibhai Ramjibhai Vs State of Gujarat (1985 II LLJ 521) the S.C held that there was no right in the employee to be confirmed merely because he 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 an extended period, if any 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 and after successful completion of which he is to be confirmed, whether his services can be terminated on account of unsatisfactory performance or some 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, a formal disciplinary action is the 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 bonafides of the order. Therefore, the shortcomings in the performance of a probationer and the opportunities given to him to improve should be well-documented. However, if the contract of employment provides for termination at any time during probation, it is not necessary that the employer should watch his performance for the full period of probation before coming to a conclusion about his suitability and decide whether or not to retain him in service.
From India, Salem
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In the first place, there is no legal compulsion on setting a period of probation for every job. Even a new recruit can be straight away hired on confirmed status, if so desired by the employer. However, the possibility of error of human judgment in the personnel selection process gives rise to the concept of probation. Therefore, confirmation is a status conferred upon a probationer entitling him as a full member of the service and to all incidental employment benefits based on the objective assessment of the employer about his ability, efficiency, sincerity, and competence over a fixed stretch of time. In case of unsatisfactory performance by the probationer by all such objective parameters, the employer has the discretion to retain him, extend his probation so as to enable him to improve upon or terminate him anytime during the period of probation but before the expiry of the period of probation including the extended period, if any.
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 he is confirmed or his services are terminated. In yet another case later viz., Dhanjibhai Ramjibhai Vs State of Gujarat (1985 II LLJ 521) the S.C held that there was no right in the employee to be confirmed merely because he 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 an extended period, if any 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 and after successful completion of which he is to be confirmed, whether his services can be terminated on account of unsatisfactory performance or some 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, a formal disciplinary action is the 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 bonafides of the order. Therefore, the shortcomings in the performance of a probationer and the opportunities given to him to improve should be well-documented. However, if the contract of employment provides for termination at any time during probation, it is not necessary that the employer should watch his performance for the full period of probation before coming to a conclusion about his suitability and decide whether or not to retain him 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 on the "service rules" you have mentioned under "When confirmation can be automatic?" Is it the duration mentioned in the employment contract or something mentioned 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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Many thanks for the above-detailed write-up, which was very informative. Could you please clarify on the "service rules" you have mentioned under "When confirmation can be automatic?" Is it the duration mentioned in the employment contract or something mentioned 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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