Is Confirmation of a Probationer Automatic

Confirmation is not a right of an employee when on probation. An employer, after completion of the probationary period of the employee, has to evaluate the performance of the employee, and upon such evaluation of performance, the employer has to either confirm him or reject him. However, in many instances we have seen that even after completion of the probationary period, the service of the employee is neither confirmed nor terminated. Can an employee be kept on probation for indefinite period?

It is the general conception that an employee remains a probationer until confirmed. However, it will depend on the condition of employment and terms and conditions as stipulated in the service rule/ standing order of the company.

As per the Industrial Employment (Standing Order) Act, 1946 a probationer can remain in probation for a period of three months only. Such period can be extended on the discretion of the management but it should not be very long. On many occasions, company intentionally keeps their employee on probation with an intention to deprive him of the legal status of a permanent employee and often to deny him statutory benefits and legal rights which he acquires during his course of employment.

The Hon’ble Bombay High Court as well as Allahabad High Court have opined that if an employee completes the period of his probation as mentioned in the appointment letter or standing order or service rules then automatically such employee gathers the permanent status unless and until his service is terminated immediately on completion of such probationary period.

Employer Holds the Exclusive Power to Transfer an Employee

Transfer of an employee often creates trouble both in the professional and personal life of such employee if due to such transfer one has to move to another city. Settling in a new city is difficult if an employee has to tag along his family members with him especially spouse and children. Practically it is harsh for the children as it is difficult to get admission in school during the middle of a session. Even though some companies compensate their employees with relocation benefits, it is not the financial constraint that always creates hindrances. However, the company on the other hand for its own benefit has to take the decision of transferring an employee from one place to another, which often upsets such employee. He can often show reluctance to such transfer. Is such transfer valid it is in the eye of law?

The power to transfer an employee for place A to place B remains in the hands of the employer. It is up to the employer to decide who, when and where to be transferred for the betterment of the company. As long as such transfer is done in terms of the appointment letter and/ or standing order, then it will be considered legal and under such circumstances no local courts would have the jurisdiction to interfere with such transfer. Even trade union leaders are transferred from one place to another which cannot be said an act of victimization directly. Trade union is engaged in the activities of welfare of the employees and not related to the activities of the management. Hence, it has been held by Rajasthan High Court in Kishori Lal Verma vs. Hindustan Zinc Ltd & Anr that transfer is a condition of service which is to be followed by every employee unless it is done with an intention of victimization; which on the other hand is very difficult to prove.