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Probation: An opportunity or a risk an investigation within the Indian context

There is no provision in the Indian labour and employment laws that define Probation. Like the term “probation” implies, it’s the first period of employment in which employers can assess whether a new hire can meet the requirements and standards of the position and if they are eligible for an ongoing position. The principal reason for keeping employees on Probation is to allow the employer to examine the employee’s performance before confirming the appointment. Probation Extension Letter is govern by usage and is a typical procedure.

The Standing Orders Rules define a “Probationer” as a person employed continuously. It is any person who has completed an initial probationary period of three months within the same or different work in an industrial establishment, which includes breaks due to illness, accidents or leave, lock-out, and strikes (not being an unlawful strike) or the involuntary closing of the establishment, which allows for a probationary period that can be three months.

However, the above the law only applies to individuals within the definition of “Workman” as defined by Industrial Employment. The effect of Probation on this group of individual must be examine.

Permanent workers are qualified for certain benefits that Probationers do not have access to. For instance, every permanent worker is issue an official ticket with their identification number. Probationers are not qualified for a permanent pass. To terminate the contract of a permanent employee, the minimum requirement of a written notification has to be issue by either the employer or the worker as stipulated in the Standing Order Rule.

But, a probationer can be dismiss immediately from employment without being legally entitle to any notice. Each permanent worker qualifies for a service certificate at termination, discharge, or retirement. However, if Probationer are terminate or discharged before the end of the probation period, the employee will not be qualified for such a certificate.

Therefore, one must be a permanent worker to enjoy the benefits stipulated in the Standing Orders Rules.

However, the letters of nomination (or an agreement in special) are not per the Standing Order to the extent of the extra four months of Probation. The inconsistency of the arrangement is unenforceable and not enforceable.

In addition, the Honourable Supreme Court held that when the contract’s terms were incompatible with the Standing Order, The conditions of employment by the Standing Order are superior to the specific clauses in the employment agreement. Also, the contract of service’s terms and conditions not in line with those of the Standing Orders would not survive.

A legislature intent by providing the statutory standing orders and establishing the sole method by which they could be alter and affix penalty for standing order were to prevent the use of the term of contract that violate the standing order.

From the above, it is clear that Standing Orders, which have the force of law, would have precedence over the conditions and terms of the appointment letter.

Termination during the probation period

Suppose the employer is not content with an employee’s performance on Probation. In that case, the employee is free to end the employment of the employee before the end of the probation period. This is except for the period for notice, which should be applicable in the employment contract or the company’s policies. Employer are not require to wait until the employee has finished their Probation before removing the employee from employment.

If an employer becomes unhappy with an employee’s work, the employer can dismiss the employee. It is also establish law that an employer is not require to prove or establish the poor performance of a probationer via an inquiry before ending its services. Indian court have always held that the decision to terminate probationer must be carry out by a non-stigmatic decree that does not meet the requirement to adhere to the principles of natural justice when deciding the decision.

It is repeat state that this power is in the appointing authority that can terminate the Probationer’s service if it believes the Probationer’s performance to be inadequate during the probationary period.

If a stigma is connect with the termination or the Probationer is call to justify any infraction that may later cause the being terminate from the Probationer position, the management or appointment authority is not oblige to provide any reason or explanation to terminate the Probationer service.

A probationer, is entitle to take leave regardless of the probation duration as stated in the employment contract or the company policy.

There is no specific law regarding the legal requirements for employees to give notice during the probationary period.

The notice period for Probation must be as specified in the employment document or the company’s policy. The idea is that the notice period for probationer is less contrast with the period of notice for an employee who has been confirm.

To determine the meaning of “deemed confirmation. There isn’t any concept of automatic or considered confirmation.

 Just because an employee has been working past the probation period, it is not a sufficient reason validly confirm. Thus, an employee can be confirm only upon receive the confirmation letter or an offer letter from the top authority of the business.

The question of whether a probationer can acquire permanent status only upon the expiration of the time has been a topic of discussion in a variety of previous judgment of the Honourable Supreme Court, and the following rules have been establish:

The appointment letter provide the period of Probation, and the power to extend it is also grant to the authority without prescribe any time limit for Probation. If the employee does not complete the extend or prescribe period, they cannot be consider to have been confirm.

When there is a provision in the employment regulation for a probationary period and extension of the probationary period and a maximum time for the extension is stipulate, and beyond which it isn’t permissible for Probation to be extend, an employee is presume to have been declare to be confirme at the expiration of the maximum time of Probation, provide that the employee has not been terminate before that.

In the case of the rules, an appropriate period of Probation is specified. The rules require an act specific to the employer, such as giving a confirmation order or passing a test for confirmation purposes. The employee will not be believe to have been confirm after the maximum probationary time stipulated by the regulations expires.

The Sum

Generally speaking, the probation period for an employee is define by the employment contract or the company policy for the employee, according to the practice of industrial and labor laws in India. However, the standard method is that the period of Probation is controll by an employer letter of employment or the company policy.

Additional, automatic confirmation upon the expiration of Probation is not a claim as a right since, in the usual practice job cannot be consider as confirm until the specific order is issu by the executive authority. For instance, an employee may be remove from work during the probationary period by providing the employee 1 month of notice payment or one month of notice.

Thus, the Probationer is Probationer until the organization decides to communicate its final decision to the company to employees within a reasonable timeframe for the extension of the probation period. If the performance is not satisfactory, then the Probationer is permitted to continue their probation period or may be terminate by the employee.

To Read more : pediamate.com

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