This Article is written by Madhvi student of UILS, Panjab University, Chandigarh.
There are no provisions in the Indian labor and employment laws which define the term probation. As the word ‘probation’ suggests, it is the initial period of employment during which an employer can carefully consider whether a new member is able to meet the standards and expectations of the job and if they should be offered a permanent position.
Probation means ‘testing of a person’s capacity, conduct or character especially before he is admitted to regular employment’. The term probation is derived from Latin word ‘probatio’ and French word ‘probare’, meaning to try, examine, prove and is itself defined as any proceeding design to ascertain truth, to determine character, qualification etc. examination, trial or a period of trial, as to engage a person on probation meaning to try, examine, prove and is itself defined as any proceeding design to ascertain truth, to determine character, qualification etc. examination, trial or a period of trial, as to engage a person on probation.
A person appointed on probation would not get the confirmation in service on expiration of stipulated probation period, if he is allowed to continue in service without any action taken by employer for confirmation or by termination, he would continue only as probationer even after the expiration of probationary period. This was held by the Supreme Court in Express Newspapers Ltd. v. Labor Court, Madras.
OBJECTIVE OF PROBATION
The concept of probation has been formulated so that incompetency in efficient employees are not foisted. The period of probation provides the employer with the opportunity to observe the work of the employee and make a sound judgment whether to keep the employee or terminate his probation. The probation period can be extended too. Thus, the objective of probation is to guard against error of human judgment in the process of selection.
PROTECTION AGAINST THE TEMPORARY POST
An employee can be put on probation even when the appointment is on a temporary basis. It does not by itself imply that his employment was with the condition of eventual confirmation. Such people are treated as temporary employees.
Contracts of temporary employment with termination clauses by reasonable notice are valid in law.
Probation period is a period of engaging an employee to test his/her performance on the suitability of a position. If an employee’s performance is found to be unsatisfactory, the employer can terminate the employee’s services and the same cannot be construed illegal. Consequently, it is clear that so long as an employee is on probation, continuation of his or her employment is not certain, and is subject to the employer being satisfied that the employee is suitable for the job.
It is important for employers to be aware of the legal issues surrounding termination of an employee on probation. The termination is valid so long as it is done by a non-stigmatic order. In this regard, it is noteworthy that the Indian courts have consistently held that the termination of a probationary employee is to be done by a non-stigmatic order and principles of natural justice need not be followed while passing such an order.
EXTENSION OF THE PERIOD OF PROBATION
Where the employer is of the view that though the probationer has not performed up to expectation but believe if given more time, he may improve. The probation period may be extended. The Supreme Court in Dhanjibhai Ramjibhai v. State of Gujarat has held that the power to extend the period of probation is an inherent one, even where the rules or the agreement do not specify. Merely because no procedural rules have been framed does not imply a negation of power. However, the power has to be exercised fairly and reasonably.
However, there is an exception, the power to extend the period of probation cannot be extended beyond the maximum period, if any period is prescribed as held in State of Gujarat v. Akhilesh C. Bhargav.
Similarly, unless rules specifically provide otherwise, the probation period can be cut short by the employer as it is his inherent right.
Save for exceptional reasons, probation should not be extended for more than a year and in no circumstance an employee should be kept on probation for more than double the normal period.
LEGAL STATUS OF A PROBATIONER
The Supreme Court in Parshotam Lal Dhingra v. Union of India, has held that an employee does not acquire a right over the post during the period of probation and his termination during or at the end of the said period in accordance with the terms of his appointment or the rules and orders governing probation shall not per se be a punishment and; hence, would not attract the protection of Art 311(2) of the Constitution.
Though the termination of probation does not attract procedural requirements applicable in discipline cases, the rules of natural justice cannot be ignored. The reason is that since the judgment of the Supreme Court in State of Orissa v. Binapani Dei, the rules of natural justice have been made applicable to administrative matters also. Therefore, it was of the opinion that a show cause notice should be issued to the employee to give him an opportunity to explain his work or conduct with reference to action proposed against him.
LEGAL POSITION IN PANDURANG GODWALKER CASE
The service of a probationer may be ended during or at end of the probation in accordance with the terms of probation. Such a decision may be based on the preliminary inquiry or assessment of overall performance or records of probationers. The order of termination of probation does not turn into an order of penalty simply because such inquiry was held. Since, the employer has the right to terminate probation in terms of appointment, such action should be based on negligence, misconduct or inefficiency.
Where the probationer is removed from service with a stigma because of some specific charge, it amounts to punishment and it cannot be done without holding an inquiry giving the employee the opportunity to show the charges against him are either not true or without basis.
DISCHARGE OF A PROBATIONER
A probationer may be discharged without complying with the requirements of Article 311(2) provided the discharge is without any imputation and without any penal consequences. The simpliciter termination of service of a probationer does not attract Article 311(2). But if the termination of service of a probation is ordered on the ground of misconduct or the like and is attended with evil consequences or a stigma is attached to the order, Article 311(2) has been held to be complied with.
Rule 55 of the Civil Service (Classification, Control and Appeal) Rules deals with cases of removal, dismissal or reduction in rank which were specifically covered by Article 311(2) of the Constitution of India and the procedure meant for these three major punishments.
RIGHT TO TAKE DISCIPLINARY PROCEEDINGS AGAINST A PROBATIONER
The fact remains that even a probationer is subject to the discipline rules and can be proceeded against for some specific misconduct with a view to imposing a departmental penalty against him. Where such an action is proposed, he becomes entitled to full-fledged procedural safeguards and, in the case of civil servants, to the protection of Article 311 of the Constitution as held in Shamsher Singh v. State of Punjab.
RIGHT TO THE RANK OR POST
The implications of this test shall now be considered. ‘Test’ given by the Supreme Court in ParshotamLal Dhingra v. Union of India, analyzed and explained
The Supreme Court has held that there are only three categories of employees who have a right over the post or rank they are holding. These are (1) permanent employees, (2) quasi-permanent employees, and (3) temporary employees appointed for a fixed period. In their case any action interfering with their tenure shall always attract the provisions of Article 311.
The Temporary Government servants and the probationers have no right to the rank orpost and hence in their case the provisions of Article 311 shall be applicable only if the termination reversion visits them with an evil or penal consequence.
TERMINATION OF PROBATIONER
As mentioned above, a probationer has no lien on the job, his/her service can be terminated at the discretion of the employer. It is advisable that while terminating the services of a probationer, the language should be simple, unambiguous and non-stigmatic.
In Chaitanya Prakash and Anr. v. H. Onkarappa, the Supreme Court of India in the matter observed that the termination order referring to the unsatisfactory services of the probationer cannot be said to be stigmatic and there is no need to follow the principles of natural justice while terminating the services of a probationer.
A person may be appointed as probationer in or against a post substantively vacant with definite conditions of probation, status of probationer is to be considered as substantive except where the rules prescribed otherwise. In a workplace, probation (or probationary period) is a status given to new employees of a company or business. It is widely termed as the Probation Period of an employee. This status allows a supervisor or other company manager to evaluate closely the progress and skills of the newly hired worker.
- Kumar Narendra, Service Law, 4th edition, 2018
- Probation – A risk or an opportunity: A Study in the Indian context, AGAMA Law Associates https://agamalaw.in/2018/05/17/probation-a-risk-or-an-opportunity-a-study-in-the-indian-context/#:~:text=There%20are%20no%20provisions%20in,which%20defines%20the%20term%20probation.&text=The%20basic%20idea%20behind%20keeping,performance%20before%20confirming%20the%20appointment.
- Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711: (1963) 1 SCR 416 : (1963) 1 LLJ 671
- Express Newspapers Ltd. v. Labour Court, Madras, AIR 1964 SC 806: (1964) 1 LLJ 9: 26 FJR 121
- Ajit Singh v. State of Punjab, AIR 1983 SC 494
- Dhanjibhai Ramjibhai v. State of Gujarat; AIR 1983 SC 603
- Circular on Probation, Government of India Ministry of Personnel, PG & Pensions Department of Personnel & Training.; https://documents.doptcirculars.nic.in/D2/D02est/Master%20Circular%20Probation%20MGEUu.PDF
- Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 361
- Samsher Singh v. State of Punjab, AIR 1974 SC 21921
- Chaitanya Prakash and Anr. v. H. Omkaraappa [(2010)2SCC623]
- Krishna Vijay Singh, India: Termination Of Employment Of Probationary Employees – Legal Issues, Kochhar & Co. (22 September 2016); https://www.mondaq.com/india/employee-rights-labour-relations/529266/termination-of-employment-of-probationary-employees–legal-issues
- What is the Probation Period? https://www.indiafilings.com/learn/probation-period/