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radheshyam (service)     12 May 2009

Probation period

Dear lawyer gurus,

In the appointment letter it is specified that probation period is for 6 month

if Probation period has completed by the any employee and no confirmation letter has issued,

in this case legally can he become a confirm employee.

 

Maharana

 

 

 

 



Learning

 24 Replies

Swami Sadashiva Brahmendra Sar (Nil)     13 May 2009

plz refer to Registrar HC of Gujrat v. GC Sharma AIR 2005 SC 344 where it was held that by continuing beyond probationary period a probationer can not claim autometic or deemed confirmation. see also,  High court of MP v. Satya narayan (2001)7 SCC 161

badrinath (Sr.Manager-human resources)     14 May 2009

i would also like to add that " satisfactory completion of probation period dosent means that an employee should be confirmed" . unless he is communicated in writing about his status, employee will only be in the probation period. but in some cases, there are companies where,in their standing order, specific clauses has been put that after completion of probation period , an  employee  is deemed  to be confirmed the next day  if  nothing   is communicated in writing to  the employee.in those sitiuations, probationers can claim automatic confirmation.( if noting  is communicated in writing about the status) otherwise, probationers cannot claim automatic confirmation.

1 Like

(Guest)

The interpretations of as such above put the workman in troublesome spot and till the superannuation, he would be in the state of "probationary period" and democles sword will be hanging on his head, if the employer chooses not to issue confirmation letter after expirty of the probationary period.  In these circumstances, the appropriate course of action is that the employee, after completion of probationary period, write a letter to the employer seeking confirmation letter and specifically saying that within 15 days of delivery of the letter, if no response comes from the employer, it is deemed that the employee is confirmed.  Then that would safeguard the interests of the employee.

Swami Sadashiva Brahmendra Sar (Nil)     21 May 2009

Dear prabhakar, the employer may be harassing the emloyee. but the emloyee can not be a decision maker imposing his conditions on employer.


(Guest)

I go with the views of Mr. Badrinath and Dr. Tripathi.   Practically, there are appraisal process which consume time, hence, until and unless it is not conveyed to the employee, the confirmation status cannot be presumed. 

1 Like

Swami Sadashiva Brahmendra Sar (Nil)     21 May 2009

thanks to mr subramanian for aproval of my opinion.


(Guest)

Sorry, I cannot agree.  The appointment letters are always heavily loaded in favour of employer and against the employee.  The doctrine of equity is the first casualty.  Most of the provisions of appointment letter hit S.23 of the contract Act.  Hence, if there is a clause, stipulating the fixed period for probation, after completion of probationary period, the employer must inform the employee about confirmation or extention of probationary period. The number of extentions and the extended period also should be prescribed, so that the future life of employee is not at the whims and fancies of employer.  My learned friends' interpreations of the clause give scope to employer to keep the employee in indefinite period under probation.

badrinath (Sr.Manager-human resources)     22 May 2009

the question which was raised in the beggining was , a.  the probation period is for six months.b. if no letter is issued after the completion period can he become legally confirmed?

no doubt, an employe remains on probation till he is confirmed  and he cannot claim  automatic confirmation. the second part is  that , this is not an absolute rule since it depends upon the terms and conditions of employment or the service rules or standing orders.it is also made clear that  an employee cannot remain on probation for indefinite period more particularly  when the model standing orders under the industrial employment ( standing orders) Act provide that a probationer will  remain on probation for three months whereas the managenent can provide longer period but it  cannot be a very long period. however, probationer will be automatically confirmed when he works even after the expiry of maximum period of probation as provided in  the  appoitment  letter  if  necessary clauses  are  provided.

the point iam trying to make is 1. an employee  remains on probation till he  is  confirmed.(  which  my learned  friends  have  correctly  adviced)  2.  having  said  that  it  should  also  be kept  in mind  that   unnecessary   delay  in  confirming  an  employee  is  not  accptable  and  in that  case  only  when  an  employee  works  for  more   than  the  expired  date  of  probation, the courts  gives automatic confirmation.

1. khar Bhan Ram vs. punjab national bank and others 1994  LLR( all.HC) 2. subhash vithal pise vs. children film society of india, 1998 LLR 852 ( bom.HC)

Swami Sadashiva Brahmendra Sar (Nil)     22 May 2009

Mr. Prabhakar !  Morally, i agree with  your feelings. legally, i would have agreed before 15 yrears (about), when judiciary was pro employee interpreting service laws as welfare legislations. But, current judicial attitude is technical and to some extent pro employer.


(Guest)

I invite Mr. Harbhajan Thukral, one of the members of this club and highly knowledgeable in service matters to provide his valuable suggestion on this topic.

Rajesh (Service)     08 July 2009

What is the maximum limit for probation period as per my appointment letter there are a probation period of  ' One year' and I have completed that period before two month. I have not received any confirmation from company. 


There are a notice period of 3 months. Now what will be the scene if I resign from job. Can company ask me for 3month notice/salary or I have a right to leave the job with out this. 


What is the Notice pay salary as per our HR Dept that wouuld be equal to three months CTC. Is this right

Please guide

 

H. S. Thukral (Lawyer)     16 October 2009

Dear Prabhakar ji,

I could not take part in the discussion earlier as I due to some urgent work did not reach the LCI during that period and the discussion passed of without my noticing it. Thanks for your compliments too. 

The appointment letter might be worded in different languages. It might  say  that 

1.The probation period shall be of 6 months and after completion employee shall be confirmed

2. The probation period shall be of 6 months and employee shall be confirmed in writing

3. The probation period is of 6 months and it can be extended up to 2 years

Each case has been viewed differently in interpretting the clauses worded as above.

In the first case the employee shall be deemed confirmed as there is no confirmation in writing required. In second case unless and until the employer issues a confirmatory letter the employees remains on probation. In the thrid type of cases if the employee does not get confirmation letter he remains on probation till the power of extension of probationery period remains with the employer ie available extension period is over. After that he shall be deemed confirmed in employment even if no communique is issued. .  

    


(Guest)

Thank you Mr. Thukral.  Wish you and your family very happy and prosperous Deepawali.

Manish (Software Engg.)     12 April 2010

What will happen if employee leaves without servicing notice period.


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