Probation confirmation

Kindly refer to the appointment letter and language of clause of confirmation of service.

Is it mentioned that:

--after probation period services shall be confirmed in writing.

--Probation period is ...........months.

--Probation period can be extended by another.............months

etc.

If the services are confirmed company shall mention terms and conditions after confirmation of service or may mention that other terms and conditions remain same as expressed in appointment letter issued by company, and ask the employee to accept the confirmation letter.

If company has not issued confirmation letter/employee has not accepted confirmation letter and terms expressed in it, the terms and conditions expressed in appointment letter including notice period should prevail.

Yes , Probation period was for 6 months and it is mentioned probation perod shall be confirmed in writing .

But the same has received a apparaisal letter along with increment on april 12 when he has already crossed 8 Months of service . Then can he treat himself as confirmed employee as his performance has been appraised ?

You have posted that:

--"It is mentioned probation period shall be confirmed in writing." Probation period has been mentioned in appointment letter. As per language of the appointment letter there should be an explicit and written confirmation of service.

In letter of confirmation of service company should mention terms and conditions after confirmation or company may mention that other terms and conditions shall be same as mentioned in appointment letter.

Language of appraisal format and increment letter may be carefully studied. Is it mentioned in increment letter that service is confirmed? Performance appraisal is discretion of the company and company may conduct it quarterly, half yearly, annually.

--“My question - Can he be treated as confirmed and is eligible for notice period of 3 months as per app letter if he resigns?”

Employee can claim as service is not confirmed in writing notice period applicable in case of resignation is ………..days as mentioned in appointment letter.

Following is the content in apparisal Letter ,

" The performance appraisal exercise for the year 11-12chas been completed . In appreciation of your valued contribution in meeting the organisation goal and objectives, we are pleases to inform you that your current CTC stands revised from ---- to ---- . .

 The goiding principle for the performance appraisal this year ,in case of employees who have completed service for a period ranging between 6-8 monthswith the organisation , the eligibility for increment is ---- of the total applicable increment amount . "

In the appoinment letter it is mentioned that a non - confirmed employee can be moved without notice  .

"Employee can claim as service is not confirmed in writing notice period applicable in case of resignation is ………..days as mentioned in appointment letter."

 Does this  mean employee can claim 3 months notice as applicable in case of confirmed employee ? 

it is felt that answer to your question is No.

Valuable advice of learned experts/members is sought.

There is a latest judgement of the year 2012 by Supereme Court on Deemed Confirmation and that is

Headmaster , Lawerence School , Lovedale

verses

Jayanthi Raghu

(2012) 4 SCC 793

You may kindly go through it , it may help you.

If he has been advised that he will be confirmed in writing,then in the light of said SC judgement he will not be treated as confirmed till confirmed in writing. I feel remaining on probation helps your friend in getting relieved without any notice. your friend should treat himself on probation till he is confirmed in writing. 

This is not a legal matter. This is an issue related to your Employer's internal service regulations.  Get the copy of Service conditions of your company by applying with your Human Resources Department and study you will come to know the exact position with regard to it.

I shall be failing in my duty to the forum if I donot respond to the issue raised by my learned friend The issue of deemed confirmation in service has been so important that the same has been agitated in SC and the Supereme Court has pronounced its judgement on the subject.How this can be concluded that this is not a legal matter..

My friend problem is , he has not got the Confirmation Letter in writing but he is being told to resign with 0 notice verbally . On the contrary he has also been issued a Letter of Appraisal on Performance after he has crossed his 8 Months of service . He need 3 months to search a new job . How he can handle the situation if he is issued a letter of non performance and terminate him on the ground ? Please suggest . 

You have posted that:

--"My friend problem is , he has not got the Confirmation Letter in writing but he is being told to resign with 0 notice verbally ." If he is forced to resign then it can be termed as deemed termination. Employee can approach appropriate forum which may be under SE act, O/o labor Commissioner, Civil Court.

Employee can withdraw resignation. Company may terminate on withdrawal.

The attempt of the company seems to be to extract resignation and then claim 3 month's notice pay and square off the dues. Your friend is closest to the situation and he can comment better on the intentions of the company.

--"He need 3 months to search a new job.”

Employee can negotiate with the line management/HR/good offices of the employer and company may agree to grant time. In some instances it is seen company also do not want to be entangled in litigation and advice the employee to tender post dated notice, sit at home and resign once he is able to firm up his next venture.

Company may or may not agree to issue written instructions and to pay salary. All depends what is the resolve and mettle in the employee.

--"How he can handle the situation if he is issued a letter of non performance and terminate him on the ground?”

The data can not be fudged. Employee may collect and save all records and raise the performance. Next employer would like to take a performer.

If there is universal and uniform decline in sales/performance it shall be difficult to single out an employee.

--Employee may record (audio/visual) if the company claims notice period is 3 months, or extract even if an email that notice period is 3 months. Then employee may tender notice period of 3 months, and mention last day in office/effective date of resignation.

If the industry is unionized, union may rescue the employee.

@Pinku.  Refer the appointment letter and the service regulations of the employer and find out whether there is any Rule which automatically confirms the appointment after the efflux of confirmation period.  It all depends on how the Rule is designed by your company.  Every organization has its own service rules and regulations, the Courts can only interpret them, they cannot go beyond those internal rules and regulations and pass orders unless there is any malafide or malicious proceeding is initiated against employee and it is apparent on the face of record.  The rule position as is evident from the Case law provided by learned friend Shri Ajit Singh Cheema is that unless the appointment letter/offer letter or the service rules expressly provide that the employee's appointment will be confirmed automatically on completion of promotion, the inference of "deemed confirmation" cannot be drawn.

Just because a performance appraisal is made that does not automatically confirm the appointment of the employee.  My advise is to convey to your friend, not to resign, but let the Management take the decision to remove him from service then he will have better position to contest his case in court.  Resignation, if done, will not give any kind of advantageous position to contest his case in court, unless he proves that "resignation was forced by Management". 

If the Management removes him from service despite his putting best efforts, best performance, your friend can claim compensation/damages if it is proved in court that he was removed with malafide intention, though the Management reserves the right to remove him without holding inquiry before confirmation.  Resignation is worst choice to make.  If the Management is asking for his resignation let him ask the Management to give it in writing so that your friend can have a record that the Management has asked for his resignation.  Otherwise, making resignation on oral threats is a legal blunder.