If the person under probation is expected to deliver his best, the period is equally crucial for an Employer as Employer during this period gets an opportunity to observe the work, conduct, efficiency, utility, integrity and suitability of the Probationer.
Probation period, truly, if a testing time for probationer, is also a testing time for the Employer. If the person under probation is expected to deliver his best, the period is equally crucial for an Employer as Employer during this period gets an opportunity to observe the work, conduct, efficiency, utility, integrity and suitability of the Probationer. However, what happens when a service of a probationer is terminated and dispute reaches Court. It then becomes a testing time for the Courts to devise a test where a person’s capacity, integrity, suitability, utility and capacity to work in harmony with the others can be adjudged at one go and what makes things more testing when termination order carries remarks which may or may not be stigmatic. Recruitment, thus, rightly can be described as a pivotal task. A candidate when appears in a selection process is selected only if he is found to be deserving and suitable to the post offered. Still it is a human judgment and chances of errors in judging the person cannot be ruled out. It is not easy to give approve candidates capacity, integrity, suitability, utility and capacity to work in harmony with others in one or few pre hiring meetings. It is for this purpose the concept of probation holds a critical place under Service Jurisprudence. Delhi High Court in its recent finding [Government of NCT of Delhi vs. Janved Meena, decided on 30th May 2013 by the bench of Hon’ble Justices Pradeep Nandrajog and V. Kameswar Rao] reiterated the legal position as under: Upon being found meritorious at a selection process, a candidate is offered employment but he cannot claim a right to serve till he attains the superannuation merely because the employer tested his suitability. The reason is that till date no test has been devised where a person’s capacity, integrity, suitability, utility and capacity to work in harmony with the others can be tested at one go. Therefore, law vests a right in the employer, to keep under watch the services of the person he has employed, but for a specific duration of time. This is to guard against errors of human judgment in selecting a suitable candidate. The employee remains on test for a specified duration i.e. the period of probation before he gets a right to be permanently absorbed. This period of probation affords to the employer the locus to watch the efficiency, ability, integrity, sincerity, suitability and the competent of the probationer employee. This is the period of reassurance for the employer to reassure that his initial judgment was right. Therefore, an employer has a legal right to dispense with the services of the employee without anything more, during or at the end of the prescribed period, which is styled as the period of probation. It would not be incorrect to say that the probation period is the testing time not only for the employee but also for the employer as even the employer’s decision of recruitment is under scrutiny as to whether his initial judgment was correct. As a general and logical practice norm, the new recruit if satisfactorily discharge the duties assigned to him he should be permanently absorbed. It would also be most inappropriate if probationer is not informed about the shortcomings in his work as it deprives him of an opportunity to improve himself and any sudden decision leading to his discharge would be open to challenge. The case before Delhi High Court raised the issue of termination of probationer on the ground of misconduct detected during the period of probation leading to termination and deciding the correctness thereof in the backdrop of test of stigma. The Court opined that: • Where on the finding of guilt an order terminating the services of an employee is passed it can safely be said that the employee has been penalized for a wrong. • However, where the misdemeanour is not treated as proved and no inquiry is held, and where an inquiry is held, the report is not made the foundation of the order, but what is opined by the employer is that the employee has lost the confidence of the employer, an order of termination cannot be said to be founded on the misdemeanour. • The misdemeanour in the above circumstances would remain as the motive for the action. • Such situation will not attract the principle that the termination is penal. The above ruling to a large extent has taken into ambit the issue of termination of probationer. Any fresh recruitee, whether at the Government or Private sector undergoes the period of probation and the change in his status as permanent depends on how he performed during the said period. The best and simply the best is expected out of probationer. However, at the same time whether Employer at any stage has given a thought about how they perform during this period, because this I would strongly say, is two-way process. If you as employer expects the best, ensure that you also follow the best practices to get the best. At the end, to sum up, following may be taken over as guiding principles to ensure, if not absolute fool-proof or safe practice, but to good extent, atleast reasonable precautionary and cautious steps: • Offer of employment to a candidate does not carry alongwith it a right that he can serve till he reach superannuation. • Employer has a right to keep probationer under watch during the probation period to adjudge his suitability to the position. • In the event of probationer being found negative, the employer has the right to dispense with the services of employee. • However, prior to taking any call leading to discharge, employer should appraise the probationer about the shortcomings in his performance, thus giving him a chance to improve. • One should understand the distinction between a termination founded on an alleged wrong and termination motivated by an alleged wrong. • If the termination is based on grounds casting stigma or has been passed with malafide intentions, the same shall always be open to judicial scrutiny. • As held by the Apex Court in Purshottam Lal Dhingra vs. Union of India (AIR 1958 SC 36), it is not the form of the termination order but the substance thereof which would determine whether it is penal and that, in an appropriate case, the Court can tear the veil behind a termination order which is innocuous on its face and is a discharge simplicitor. • The words ‘unsatisfactory work and conduct’ in the termination order will not amount to a stigma [State of Orissa vs. Ram Narayan Dass, AIR 1961 SC 177]. Stigma as defined in dictionary (and also as reiterated in Kamal Kishore Lakshman vs. Pan Amercian World Airways, 1987 (1) SCC 146) is “something that detracts from the character or reputation of a person”….. “to be blemish, defect, disgrace, disrepute, imputation, mark of disgrace or shame.” The author of this Article is Anupam Srivastava who can be reached at email@example.com