PROBATION UNDER SERVICE LAWS
Author: Varnit Vashistha, IV year of B.A.,LL.B. from Maharaja Aggrasen Institute of Management Studies, GGSIPU
In Indian Labour Law there are no provisions that define the term “PROBATION”. Probation as the term suggests is a period in which an employer can check whether the newly appointed person is suitable for the post or not and whether he or she is fulfilling the required expectations/standard for the said post and check whether if he or she should be permanently appointed or not. The basic idea behind keeping an employee on probation by the employer is to evaluate the employee for the post on which he or she is to appointed. Some employers are under the incorrect assumption that, by appointing a new employee under probation, it entitles them to use probation as an excuse to fire the employee if he/she does not fit in (as example only), without having to meet formal legal obligations.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. Thus, all the terms and conditions should be carefully kept in mind by both the employer and the employee.
KEYWORDS: EMPLOYER, EMPLOYEE, PROBATION, OBLIGATIONS
1. A person is appointed on probation in order to evaluate his or her eligibility for absorption in the service on which he or she has been appointed. Probation should not, therefore, be treated as a mere formality. No formal declaration is required for in respect of appointment on probation. The employer can declare on successful completion or extend the period of probation or terminate the services on the basis of his or her evaluation of performance.
2. Probation is mainly put in practice when there is direct recruitment, promotion from one group to another or for officers re-employed before the age of superannuation. The probation shall stand successfully completed upon issue of orders in writing.
3. Instead of treating probation as a formality, the existing powers to discharge probationers should be systematically and vigorously used to the necessity of dispensing with the services of employees at later stages may arise only rarely.
4. Concentration of attention should be there on the probationer’s ability to pass the probationary or departmental examinations, and if applicable then it should play an important role in confirmation of the candidate. Also, a very careful assessment of the outlook, aptitude and character for the kind of work that he or she has done before the probationer is confirmed.
5. A probationer should be given an opportunity to work under different officers and his performance report should be accumulated from each of those officers. These probation reports which are for the whole period will be taken into consideration when confirming the position of probationer. For this purpose separate forms of reports are to be used which are distinct from the Annual Performance Appraisal Report (APAR) forms. The probation period reports, unlike APAR, are written to help the supervising officer to concentrate on the special needs of probation and to decide whether the work and conduct of the officer during the period of probation or the extended period of probation are satisfactory enough to warrant his further retention in service or post. The probation period reports thus do not serve the purpose for which the APARs are written and vice versa. Therefore, in the case of all probationers or officers on probation, separate probation period reports should be written in addition to the usual APARs for the period of probation.
6. A probation should not extended for more than one year and in no case an employee should be kept in probation for more than double the normal period.
7. If a probationer is not making progress in his work then he or she should be informed of the shortcomings in his work so that he or she can make additional efforts well before the expiry of probationary period. This can be done by giving him or her a written warning with reference to the fact that his or her performance have not been up to the expectations and if they don’t show substantial improvement within a specific period of time then the employer may consider discharging them of their duties.
8. During the period of probation, the candidates may be required to do specific training and instructions and pass examinations as the Employee may deem fit as a condition for the satisfactory completion of probation.
RIGHTS OF A PROBATIONER
1. A probationer shall be entitled to leave under the provisions of the Rule 33 of the CCS (Leave) Rules, 1972. If, for any reason, it is proposed to terminate the services of a probationer, any leave which may be granted to him shall not extend; I. beyond the date on which the probationary period as already sanctioned or extended, expires, or II. beyond any earlier date on which his services are terminated by the orders of an authority competent to appoint him.
2. Employees on probationary period enjoy same rights as the other staff. They are as follows:
i. Receive at least the National Minimum Wage or National Living Wage (depending on their age)
ii. Itemized payslips
iii. Paid holiday entitlement which will begin to accumulate from the first day of employment
iv. Maximum working hours and minimum breaks
v. Maternity leave
3. As far as the matter of maternity leave is concerned, it should not be granted ordinarily during the probation period until or unless some extreme situation arises and the leave sanctioning authority is fully satisfied regarding the need for maternity leave to the probationer.
4. Joining Time is granted to the Government servants on transfer in public interest. The period of joining time availed by a probationer on return from leave should be counted towards the prescribed period of probation if but for leave, he or she would have continued to officiate in the post to which he or she was appointed.
EXTENSION OF PROBATION PERIOD
1. The probation period is extended only when a probationer has not undergone any requisite training course or passed the departmental examination (proficiency in Hindi etc.), if there is an extension in probation period then it should be kept in mind that the period of probation should not exceed double the prescribed period of probation.
2. If the appointing authority deems fit then they can extend the probation period by a specific period and it should not exceed double the normal period. In the extended probation period, periodic reviews are to be done and the extension should not be for a long time.
3. When a probationer has completed the term of his probation up to the satisfactions of the employer then he should confirmed for the post at the end of probation period.
4. If an employee has not completed his or her probation due to taking leave for long duration and if he has not completed his 75% of his probation period then the extension should be given only of the period which he has missed. And it should be kept in mind that it should not exceed double the original period.
TERMINATION OF PROBATION
1. When the employer is not satisfied with the performance of the employee on probation then the employer is free to terminate the probationer by giving him a notice. The decision regarding confirmation of the employee should be taken within six to eight weeks of after the expiry of initial probationary period.
2. After the expiry of probationary period efforts should be made to obtain the assessment report of the probationer so as to:
Confirm his or her position or issue orders regarding the satisfactory termination of the probationer
Extend the period of probation or discharge the probationer or terminate him or her in accordance with the relevant rules and regulations given by the competent authority, if the probationer has not completed his or her term satisfactorily
3. Timely action is required as to avoid the delay in confirmation.
4. If it ever comes to notice of appointing authority during the period of probation that the probationer is not making substantive efforts then he or she can be reverted back to the post preceding their appointment.
5. A probationer reverted or discharged does not have any right to be entitled to any compensation.
LEGAL ISSUES REGARDING TERMINATION
Facts of this case are
In this case the respondent was offered an appointment to post of Executive Director [Marketing] by the Appellant no. 2 which goes by the name of, M/s. Hindustan Photo Films Manufacturing Company Ltd. by issuing an offer of appointment dated 03.06.1998. The appointment was made with the condition that respondent will be on probation for a period of one year which can be extended too.
During the period of your employment in the Company, you will be governed by the Service Rules of Hindustan Photo Films Service Rules for Officers, which would be applicable to the officers of the company as may be in force from time to time.
Clause-3 of the Hindustan Photo Films Service Rules for Officers which came into effect on 1st March, 1974 deals with matter of probation. The relevant sub- clauses within clause-3, read as follows:
"3.1 An Officer appointed by direct recruitment or promotion shall be on probation for a period of one year from the date of joining the post. 3.2 The performance during the period of probation shall be reviewed by the Company and the Company may extend the period of probation or terminate the services of the probationer recruited from outside at any time during or at the time of the probation period.”
After this the performance of the respondent was came under scrutiny and the appointing authority was not satisfied with his work and his probation was by another three months.
The issue that falls for consideration in this appeal is whether the impugned order passed by the appellants against the respondent terminating his service during the period of probation was an order of termination simpliciter due to unsatisfactory service or "stigmatic" due to misconduct.
In this case the Hon’ble Court held 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.
In this case too a similar issue has been contended by the petitioners that their orders of termination were void as they are violative of principles of natural justice, arbitrary, stigmatic and punitive in nature and without any reason as the petitioners had rendered satisfactory services. In the present case, the Hon'ble Court brushed aside the contentions taken by the petitioners and it was held that the principles of natural justice need not be followed while terminating the services of a probationary officer. In so far as the plea of stigmatic order is concerned, the Hon'ble court observed that since the orders of termination only states that petitioners are unfit for continuing their work thus, the expression used in the order cannot be said as stigmatic in nature.
The Probationer remains a Probationer until the company decides and communicate the decision to the employee within the reasonable time period regarding the extension of the probation period. If the work is not satisfactory then the Probation is extended or else he or she is terminated by the employee.
However, to avoid disputes, one must provide for a specific action without which the employee shall not be deemed to be confirmed. Care needs to be taken while drafting employment letters and company policies. Also if an employer discharges an employee on the basis of misconduct then there is a nexus between misconduct and discharge and the order of termination is not stigmatic and a departmental enquiry may be imperative.