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Probation period

Page no : 2

Rajeev1978 (Manager)     27 August 2010

Dear Thukral ji,

In the second option:

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

If the employer doesnot tender a confirmation letter after 6 months  then will the probation period continue for an indefinite period of time??? In this case it will be pure prejudice against the employee who may continue to be in a probation period even after probably 2- 5 years of working in a company !!!or is it obligatory for the company to specify the extension period of probation in the offer letter itself or issue a separate letter on extension of probation after the specified period of probation has expired.

I invite all the members to plese  give your valuable comments on this issue

 

Regards

ujasss@gmail.com (ujasss@gmail.com)     29 July 2011

Hi

I need your help on this topic.

Please post your reply. It would be really kind of you.

https://www.lawyersclubindia.com/forum/details.asp?mod_id=41440&offset=1

 

Regards,

Ujas

Kumar Doab (FIN)     29 July 2011

Learned experts Dr. Tripathi, Mr. Subramanian, Mr. Gujral, along with  respected members Mr. Badrinath, Mr.Prabhakar, have clarified the queries with their expert opinion, posted lots of inputs, and have enriched the forum.

It is nice to see Mr.Subramanian’s post after quite a time.

Kindly advice:

Standing orders of the company may not be expressed in the appointment letter, and may not be circulated to all employees as matter of practice, and may not be made available at the Hr page of intranet of the company, and may not be supplied even if the employee submits a written request. So may be the case with employee policy and handbook.

However the company may drop a bomb from standing orders.

How can employee obtain copy of standing orders from the company? What is the sure shot way?

ujasss@gmail.com (ujasss@gmail.com)     29 July 2011

Originally posted by :Harbhajan Singh Thukral
" 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. .  
    
"

Dear Mr. Thukral,

Could you plz interpret the clause in my appointment letter. Thanks in advance.

Clause:

B. Probation

You will be on probation for a period of 6 months. During this period of probation, your services may be discontinued with notice of 1 month and likewise you would be free to leave the services of the Company with notice of 1 month in writing or salary in lieu thereof.

On succesful completion of the probation period, you will be confirmed in the services of the Company. Upon confirmatin, your services will beliable to termination by wither side with notice of 3 MONTHS in writing or salary in lieu thereof.

"

 

 Regards,

Ujas

ujasss@gmail.com (ujasss@gmail.com)     29 July 2011

Hi Everyone,

Could you please help me on this.

My appointment letter says I would be on probation for 6 months. 

 

Notice period during probation: 1 month

 

Notice period after confirmation: 3 month

 

I resigned exactly 2 days after the completion of 6 months in the organization. But, here, I had not recieved any confirmation letter of any sorts (written or verbal) . But still, my HR is asking me to serve 3 months of notice period. 

The problem is I want to be relieved in 1 month and join this new company.

I want your help in claiming that I am still not confirmed, hence my notice period stays 1 monts.

I will read a quote from my appointment letter.

"

B. Probation

You will be on probation for a period of 6 months. During this period of probation, your services may be discontinued with notice of 1 month and likewise you would be free to leave the services of the Company with notice of 1 month in writing or salary in lieu thereof.

On succesful completion of the probation period, you will be confirmed in the services of the Company. Upon confirmatin, your services will beliable to termination by wither side with notice of 3 MONTHS in writing or salary in lieu thereof.

"

 

Please suggest what to do in this case.  

Also, if you have any ideas, let me know how to take advantage of 'succesful completion' clause mention in 2nd para above.

 

Regards,

Ujas

Ajay Mathew (AM)     19 March 2012

Am working in an organisation as Manager. I have joined the organisation on 12 January 2010. My probation was for two years. As such my probation period has to be over by 11 January 2012. Unfortunately my organisation called for a strike on 23 January 2012. I have participated in the strike since my probation period was over. All over India in different branches about 50 candidates were joined in my batch and all my friends got their confirmation letter except me due to delay in processing my confirmation at my branch level. Now my organisation at Head Office level has defered my confirmation since i have participated in the strike before obtaining confirmation letter. Kindly guide me what can i do in this situation so as to get my confirmation letter

Kumar Doab (FIN)     19 March 2012

Obtain copy of the certified standing orders of the company. If certified standing orders are not applicable model standing orders shall apply. Read carefully the standing orders and confirmation clause in your appointment letter and show these to a competent and experienced service lawyer.

Girish Rodiyal (Room Division Manager)     13 February 2013

On probation company can dismiss his staff without any notice period/compensation, if no kindly send me the link so that I sue the company...

 

Thanks and regards

N.K.SHUKLA (OFFICER)     24 November 2013

I am Working as an officer in financial organisation. in my order of appointment it is described that,

'' Your appointment will be on probation for a period of 2 years."

as I have been appointed on this job as on 26.09.2011 , so my period of probation as per my appointment order my period of probation is ended on 26.09.2013 with my regular service.

But, by the same date i.e as on 26.09.2013, I had not received the order of either extension or confirmation.

now after almost 44 days I have received letter of extension of probation for another 6 months dated 23.10.2013 , received as on 09.11.2013.

AS i have inquired with HR dept, they orally said you have been reviewed by the top officials of HR and  of the organisation.

But as my probation period is over on 26.09.2013 and letter issued dated as 23.10.2013, in between 27 days of regular service after stipulated time period of ending of my 2 years probation period, there is no information communicated to me or my reviewing Principle officer regarding any standing orders/interim orders were passed ,nor they have informed that you are being reviewed  separately form the other officers of your batch.

Kindly advise me Lawyer gurus, there are many question in my mind of which I could not find the answers.My queries are as follows :

1.     For almost 44 days after my probation period i have not informed ? Why ?

2.     IF letter was issued on 23.10.2013 ,why it was not in knowledge of the respondent of the same department when i have submitted my query in written to him, and he replied about decision will be conveyed by Zonal office.

3.     Is there any interim/standing/Midterm order passed that you are being reviewd so you are neither been extended nor been confirmed in the regular service.?

4.     What is real date of issuance of letter ? 23.10.2013 or anything else?

5.     Why there was not a single chance been provided to represent my self?

6.     I feed it is clear cut breach of Principle of Natural Justice and Right to being Heard ?

7.     I could not find whether it is a mere gross negligence of malicious intention ? As the leeter was issued with back date as i have started inquiry about my confirmation status from 25.10.2013 ??

 

Kindly advise me to what to do for the same.....

Kumar Doab (FIN)     25 November 2013

 

>> You have quoted only one line from the appointment letter issued to you.

 

It shall be appropriate that without wasting any time you may show the job advertisement, job application, interview call letter, selection letter, offer letter, appointment letter, standing orders applicable to the company and extended to your designation, service rules, service codes and regulations, and any other communication that you may have, to a lawyer specializing in labor/service matters and proceed under the expert advice of your lawyer. The lawyer that has seen all of your docs and has analyzed your inputs in person can advice you the best.

 

The employee should have enough on record to establish that the employer has taken action beyond its jurisdiction.

 

Your lawyer that has seen all of your docs and has analyzed your inputs can help you to understand the nuances of the matter and merits of your case.

 

>> You have posted that:

 

'' Your appointment will be on probation for a period of 2 years."

 

Is it stated that:

 

-- the probation period can be extended for another………………….months

 

 

--max. period of probation……………..months.

 

Is there any rule that probation period can be extended even beyond the max. period of probation.

 

Do the standing orders and rules state that probation period is 2 years……………… or should not exceed 2 years…………………and order of confirmation is necessary.

 

The courts of law may not examine the appointment letter alone and may examine standing orders, service codes and regulations, rules also.

 

In this thread learned experts/members including Mr. Thukral have explained and illustrated the style and manner by which employers insert clauses on probation/confirmation.

 

 

--The services of the employee shall be confirmed in writing.

 

 

>> The officials of the establishments that are responsible and are part of the process of review/appraisal/ departmental test

for confirmation have to initiate the process of appraisal/test well in time  and conclude it well in time and should inform the employee under probation well in time.

 

Has the establishment described the process of appraisal in any of its communication/policy/rules/ service codes and regulations and has it explained who the stakeholders in the process are and who shall initiate when………………. and pass to whom…………. and who shall finally decide.

 

Many companies have such a policy and printed version is accessible by employee on HR portal and can also be obtained from concerned HR personnel.

 

Such a policy may help you to fix the onus of erroneous, irresponsible, lackluster approach of the authority.

 

Such policies and are put in place so that the line Managers, HR, employer, do not take arbitrary decisions.

 

>> If company has a process of periodic appraisal(s), appraisal format/forms, then the employee should be appraised by authority by a meeting with employee and copy of the format/form should be provided to employee.

 

The observations and comments made on conduct and performance, probation assessment report  of employee should be shared with employee.

 

“Every entry in ACR – poor, fair, average, good or very good – must be communicated ………….. within a reasonable period.”


Supreme Court of India
Sukhdev Singh vs Union Of India & Ors. on 23 April, 2013
https://indiankanoon.org/doc/9665019/?type=print

 

 

If there is some adverse report that has lead to extension of period of probation then it should have necessarily been communicated to employee. Your lawyer may opine that non following may render the ACR void.

 

 

>> Has the employer issued any stinkers, notices, show cause notice etc during the period of 2 years raising concerns on your performance and conduct ad demanding improvement?

 

 

>> Has the authority stated any reason for extension of the probation?

 

If the authority has taken an arbitrary decision without providing any opportunity of hearing to you and if it is blatant violation of principle of natural justice and establishment’s own rules leading to detrimental effect of employee, then employee has the right to agitate.

 

The employee may escalate the grievance as per escalation matrix in the establishment.

 

If employee has exhausted the options of appeal to employer and the grievance is not resolved employee can approach lawful authority and court of law.

 

After all Courts and state is ‘Parens Patriae’: Parent to the nation.  

 

>> You wish to stake claim for deemed confirmation.

 

If it is stated in appointment letter issued to you that:

 

'' Your appointment will be on probation for a period of 2 years." And nothing else then it may be perceived as max. period of probation and you may succeed.

 

The deemed confirmation has been explained and decided by courts of law:

 

 

You had started the inquiries and probably it had jerked the dept. from its sleep and it started working on it.

 

Usually if the company has separate HR then it is to maintain the calendar and initiate the process of appraisal for confirmation of service.

There seems to be some reason to believe that it has erred and did not initiate in time.

 

You have posted that:

 

AS i have inquired with HR dept, they orally said you have been reviewed by the top officials of HR and  of the organisation.

 

The concerned HR personnel were fully aware of the pending probation, probation assessment report and review by top officials of HR and organization. This hints that as per HR version the report was written and was sent for review and it might be an explanation for delay.

 

 

“there is no information communicated to me or my reviewing Principle officer regarding any standing orders/interim orders were passed ,nor they have informed that you are being reviewed  separately form the other officers of your batch.”  ……………………………………………”why it was not in knowledge of the respondent of the same department when i have submitted my query in written to him, and he replied about decision will be conveyed by Zonal office.’

 

 

He should be at least aware of the report written by him.

 

>> You may find the attachment  and judgements cited in it as interesting.

Delhi High Court

The School Management Itl vs Jai Prakash And Anr on 30 July, 2013

  

 

You may collect the standing orders, service rule and all other relevant documents and communications and spend quality time with your labor consultant/service lawyer- law firm and proceed under the expert advice of your lawyer if there are enough merits found in your case by your lawyer.


Attached File : 260288971 the school management itl vs jai prakash and anr on 30 july, 2013.pdf, 260288971 sukhdev singh vs union of india & ors. on 23 april, 2013.doc downloaded: 199 times

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