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 judgement 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 News Papers 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 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 is 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 behavioural issues either during the probation period or only at the end of the same would be a pertinent question. Regarding behavioural 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 on 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.