Touchstone of suitability

The probation period must be taken seriously, else one can be sacked overnight, as it does not involve too many legal provisions. The period of probation is a test during which the work and conduct of an employee are under scrutiny. If, after assessing the employee's work and conduct, it is found that they are not suitable for the job, it is open for the employer to terminate their services without much legal hassle.

Courts have consistently held that the services of a probationer cannot be equated with those of a permanent or regular employee. If a regular employee is in the government or falls under the "workman" category as defined by the Industrial Disputes Act, 1947 (ID Act), they can be terminated only in accordance with the law. In other words, they can be dismissed or removed for misconduct, such as non-performance, only after disciplinary proceedings are conducted in accordance with the relevant rules, which include following principles of natural justice. If there is a need for workforce reduction, employees in the workman category can also be retrenched after following due procedure. However, no such procedures are required in the case of a probationer.

In the case of M Venugopal vs. Divisional Manager, LIC, 1994, the employee was appointed as a Development Officer by the management on a probationary basis. His services were terminated before the end of the probation period. Upholding the termination, the Supreme Court held that even under general law, the service of a probationer can be terminated after making an overall assessment of their performance during the probation period, and no notice is required before termination. The Court said it was not a case of retrenchment within the scope of the ID Act. In Escorts Ltd. vs. Presiding Officer and Ors., 1997, an industrial dispute relating to the termination of an employee's services was raised. The Supreme Court held that since the termination was in accordance with the terms of the contract, it did not constitute retrenchment.

It is also to be noted that if an entity has, by contract or under the rules, clauses such as probation, wherein there is the right to terminate employment, but the organisation nevertheless chooses to punish the employee, then the punishment becomes stigmatic, and the procedure of inquiry must be complied with. The rule of thumb is that where the termination during probation is on account of some misconduct, an inquiry is warranted by law since stigmatisation or accusation may affect the future employment of the employee. However, if it is termination simpliciter, meaning there is no reason cited in the termination order, then no such inquiry is needed for termination during probation.

A 7-judge bench of the Supreme Court in Shamsher Singh vs. State of Punjab, 1974, held that before a probationer is confirmed, the authority concerned is under an obligation to consider whether the probationer's work is satisfactory or whether they are suitable for the post. In the absence of any rules governing a probationer in this respect, the authority may conclude that, due to inadequacy for the job or for any temperamental or other objective reasons not involving moral turpitude, the probationer is unsuitable for the job and hence must be discharged. The authority may, in some cases, believe that the conduct of the probationer may result in dismissal or removal after an inquiry. But in those cases, the authority may choose not to hold an inquiry and may simply discharge the probationer to give them a chance to make good in other walks of life without stigma at the time of termination of probation. The Court said no punishment is involved if this procedure is followed. If, on the other hand, the probationer is faced with an inquiry on charges of misconduct, inefficiency, or corruption, and their services are terminated without following the provisions of Article 311(2) of the Indian Constitution, they can claim protection. Article 311 of the Indian Constitution deals with the dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union or a State. Article 311(2) states that no such person shall be dismissed, removed, or reduced in rank except after an inquiry in which they have been informed of the charges against them and given a reasonable opportunity to be heard in respect of those charges.

Given this legal position, it is important that the probation period is taken seriously, or one can be discharged without much rocket science procedure involved.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal