Employee deemed to be under probation w/o confirmation ltr?

yes he will be still considered under probation period. but an employee after completion of 184 days of services become automatically permanent.

Thank you Amrita !!!

Just a small clarification, 184 days mean just around 6 months.... is this from the first day of his employment or after the first 6 months when he still haven't received the Confirmation letter ?

Also, I have been made aware of a similar case adjudicated in Supreme court (around 5 - 6 years back), wherein, it was held that it is the duty of the Company to provide the confirmation letter and employee is deemed to be still under probation.

Kindly advice.

Thank you.

Company has stated the policy in appointment letter, and is duty bound to conduct the appraisal well in time and provide (supply) the letter of confirmation and ask for acceptance in reasonable time, to new terms and conditions after confirmation of service. Employee has to submit signed copy towards the acceptance.

Thank you Mr. Kumar.

However, in this case, the Employee has resigned after 15 months of service by submitting a Notice period of 7 working days. Company has not provided the Confirmation until the date of his last working day.

As on today, the company has stopped the last salary as the Company insists that the employee was a Confirmed employee by the way of interactions/ correspondence and other actions, but the actual copy of the Confirmation letter (Black n white) was never provided to the employee.

Can the employee challenge his last month salary by stating that as the Company never provided the Confirmation letter, it is deemed that the Company continued his services still under probation ?

Kindly advice.

The last month salary is disbursed usually with F&F.

The statements of the company are verbal or in writing, and which are these interactions/ correspondence and other actions cited by the company, and which official of the company has cited these?

However you should give an opportunity to company to explain their stand in writing, and  submit a gentle, written representation, under acknowledgment, to the appointing authority, MD, Head-HR, company secretary, and state the facts, and ask to supply you the acknowledgment of notice of resignation, acceptance of resignation, and to settle your a/c and supply F&F, form16, service certificate, relieving certificate, PF accumulation reports, PF withdrawal/transfer forms, acknowledgment of company property submitted by you, NOC/NDC etc, say within 15 days. If you/your elders/your lawyer feel it right you can cite or enclose the SC judgment pointed out by you. You can prepare your own statement of payables/receivables and enclose with your letter and ask the company to release the funds to you accordingly.

Unfortunately, the F & F system is not something that is being carried out in that organisation.

The statement was made by the Director of the Company and from what I have understood, the interactions/ correspondence and other actions were a part of the job responsibilities assigned from the day of employment wherein there was no special mention even in any email or written documents which defined the Confirmation or Promotion to a higher level of the employee. There was also no increase in the salary and was kept the same right from day one.

The acceptance of the resignation is being made on the email by the Director. Yes, I shall definately try and seek out the SC case and it's details.

From your first day of employment till date you have not been confirmed in writing, hence as per policy/rules/employment agreement  of the company, your probation period is extended, as per rules of the company set out in your appointment letter.

The statement prepared by the Director, as per facts posted by you is erratic. You can submit a gentle representation and statement of payables and receivables and use your negotiation/persistence/persuasion skills with the director and infuse sense, thus to settle the matter in your favour.

You can approach local o/o labour commissioner/wages. This should solve your case.

Dear Patel,

First of all, the company does not have any right to keep an employee on probation for indefinite and unspecified period,

Secondly, if the company has not mentioned in the terms of conditions of the probation that the probation would be deemed to have been extended till the confirmation letter is issued, only in that case the probation can be deemed to have been extended, but still not for indefinite period. The company will have to decide on review and communicate the decision to the employee within some reasonable time whether the probation has been extended and for what more period. If the management forgets to discharge its duty to review the case of the employee the employee cannot be penalised for the fault of the management.

Company cannot also withhold the salary of duty period of an employee just on the plea that the employee was confirmed when it has clearly stated that company will issue  confirmation order, but fails to issue any confirmation order on its part.

Thus, by doing so and on account of defective terms of agreement, the company cannot hold all the trump cards in its fold, as against the interests of the employee.

As such, the action, as well as the terms and conditions of the company are liable to be challenged.

the employment letter may stipulate following terms:

the employee shall remain on proabation for a period of 6 months and after six months he shall be confirmed in employment 

the emplouee shall be on probation for a period of 6 months and the probation period can be extended up to two years.

the employee shall be initially on probation period of six months and after completion he shall be confirmed in writing .

In first case if the employee completes six months he shall be deemed confirmed after that

In second case the probation period shall be automatically extended but after two years he shall be deemed cnfirmed 

In the third case he shall continue on probation . A period of five years on probation is even not unreasonable as per decisions of the courts.  

In the light of above  Expert Amrita is totally wrong in saying that after 184 days the employee is confirmed . I don't know from where a period of 184 days has been picked. 

I tend to agree with Mr. Dhingra but as I said period as long as five years has been considered reasonable. 

Thank you Mr. Thukral.

In this case, the third scenario applies that you mentioned. Here, it was clearly stated that the first 6 months shall be probation period and upon completion, the Company shall provide the Confirmation letter.

As it was the Company's duty to provide the Confirmation letter and which it failed to do so, the employee was under the impression that the Company continued his services still under probation.

You can further read judgment Mohd. Salman vs. Committee of Management SC Sept 2011

I have referred to the said Case Law and other references mentioned thereinafter.

It is a Supreme Court judgement that, the Employee cannot be deemed to be a Confirmed employee at the end of the probation period unless the terms of condition state it specifically.

In this case, further, does an Employee have any scope to also file a petition for Compensation for undergoing Mental Stress caused to him for xyz months while the Company refused to pay his duty salary ?

No. In India such claims are not understandable.

Hi,

What if i don't accept the confirmation letter and I put the resignation in my company before accepting the offer letter.

Then in this case will my notice period will be according to probation period or i have to server full notice period which is applicable after confirmation.