PROBATION AND EMPLOYMENT
Introduction
This article seeks to examine the following issues pertaining to probation and employees on probation :
- Who is a probationer and what are the laws governing probation?
- Does the law mandate probation period for employees?
- If the law does not mandate probation, then can probation be done away with? What are the legal implications of termination of a probationer’s employment?
Who is a Probationer & the Laws Governing Probation
‘Probation’ means testing of a person’s capacity, conduct or character especially before he is admitted to regular employment[1]. A ‘probationer’ is an employee who has been provisionally employed to fill a permanent vacancy and whose probation i.e. fitness for the post has not been confirmed or declared[2].
Probationer as a category of workman has not been classified under any legislation except under the model standing orders (the “Standing Order”) framed under the provisions of the Industrial Employment (Standing Orders) Central Act, 1946 (the “Act”). A probationer, under the Standing Order, is construed to be a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months’ service therein. Order 3(c) of the Standing Order further stipulates that if a permanent employee is employed as a probationer in a new post, he may, at any time during the probationary period of three months, be reverted to his old permanent post.
The provisions of the Act are applicable to every ‘industrial establishment’[3] wherein one hundred or more workmen are employed, or were employed on any day of the preceding twelve months.
Is Probation Period Mandatory?
The power to put an employee on probation for watching his performance and the period during which the performance is to be observed, is the prerogative of the employer. Further, it is open to the employer to employ a person without putting him on probation. However, if the employer requires an employee to undergo probation, prior to confirmation of his employment, the employer shall be required to;
- specifically mention in the letter of employment / appointment, the period for which the said candidate will be under probation and any extension of such period of probation; and
- undertake the procedure to be followed for termination of the candidate during the period of probation.
Period of Probation
The period of probation during which the performance of an employee is to be observed is the prerogative of the employer.
The Supreme Court of India in the case of Ajit Singh and Ors. Vs State of Punjab and Anr.[4] while deciding the question as to “how the period of probation has been understood in service jurisprudence”, decided / observed as follows;
“The period of probation therefore furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master. And it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer”.
Termination of Probationer vis-à-vis Permanent Employee
Rule 13(2) of the Industrial Employment (Standing Order) Central Rules, 1946 deals with termination of employment of a temporary workman / probationer, and provides as follows:
“No temporary workman whether monthly-rated, weekly-rated or piece-rated and no probationer or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated…”
The Supreme Court of India, while deciding the issue of termination of a probationer vis-à-vis permanent employee, has in a catena of cases decided as follows:
1.Life Insurance Corporation of India and another Vs. Raghavendra Sheshagiri Rao Kulkarni[5]
“The period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause”.
2. Parshotam Lal Dhingra Vs. Union of India[6]
“An appointment to a permanent post in government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as "on probation" without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice” and it was further held that “It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time”.
3.Bishan Lal Gupta Vs. The State of Haryana and Ors[7]
”On this aspect of the case, the High Court rightly seems to us to have proceeded on the view that there should be at least some difference, as to the nature of or the depth of the inquiry to be held, as between a probationer whose services can be terminated by a notice and a confirmed Govt. servant who has a right to continue in service until he reaches a certain age. It is true that neither can be "punished" without a formal charge and inquiry. But, a less formal inquiry may be sufficient, as it was here, to determine whether a probationer, who has no fixed or fully formed right to continue in service (treated in the eye of law as a case of "no right" to continue in service), should be continued. A confirmed Govt. servant's dismissal or removal is a more serious matter. This difference must necessarily be reflected in the nature of the inquiries for the two different purposes”.
It is imperative to state that an employee under probation is however entitled to the benefits available to a regular / permanent employee under the provisions of (i) Employees Provident Funds and Miscellaneous Provisions Act, 1952, (ii) Employees State Insurance Act, 1948, (iii) Maternity Benefit Act, 1961, and other applicable legislations.
Conclusion
In view of the above, and the judgments given by the Supreme Court of India in the case of Ajit Singh and Ors. Vs. State of Punjab and Anr. (supra), probation for an employee is not mandatory under law and it is within the discretion / prerogative of the employer to employ a person without putting him on probation. The period of probation of an employee is also the prerogative / discretion of the employer. Further, since law does not mandate compulsory probation / period of probation, there can be no legal implication in doing away with probation. However, in absence of probation, an employee would be construed to be a permanent employee and his service cannot be terminated abruptly without any notice or plausible cause (as specified under Section 25F of the Industrial Disputes Act, 1947).
The views and opinions expressed in this article belong solely to the author and do not reflect the position of Tatva Legal, Hyderabad.
[1] As defined in Law Lexicon
[2] As defined in Law Lexicon
[3] Industrial Establishment under the Act has been defined to mean an industrial establishment as defined in clause (ii) of Section 2 of the Payment of Wages Act, 1936 - Section 2(h) of the Payment of Wages Act, 1936 defines ‘industrial establishment as any other establishment or class of establishments which the Central Government or a State Government may having regard to the nature thereof the need for protection of persons employed therein and other relevant circumstances specify by notification in the Official Gazette.
[4] AIR1983SC494
[5] (1997)8SCC461
[6] (1958)SCR828
[7] AIR1978SC363