Termination during Probation


CA Nos. 8933-­8934 of 2017 titled Rajasthan High Court v/s Ved Priya & Anr dated 18.03.2020

The purpose of such probation has been noted in Kazia Mohammed Muzzammil v. State of Karnataka (2010) 8 SCC 155 :

“25.   The   purpose   of   any   probation   is   to   ensure   that   before   the employee   attains   the   status   of   confirmed   regular   employee,   he should satisfactorily perform his duties and functions to enable the authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation. …”

 Similarly, in Rajesh Kumar Srivastava v. State of Jharkhand (2011) 4 SCC 447 it was opined:
“… A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation   in   service.   There   are   various   criteria   for   adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the probationer (appellant) are generally under   scrutiny   and   on   the   basis   of   his   overall   performance   a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. …”

It is thus clear that the entire objective of probation is to provide the employer an opportunity to evaluate the probationer’s performance and test his suitability for a particular post. Such an exercise is a necessary part of the process of recruitment, and must not be treated lightly. Written tests and interviews are only attempts to predict a candidate’s possibility of success  at   a   particular  job.   The   true   test   of   suitability   is   actual performance of duties which can only be applied after the candidate joins and starts working. 

Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36 , a Constitution Bench opined that:

"28.... In short, if the termination of service is founded on the right flowing   from   contract   or   the   service   rules   then,   prima   facie,   the termination   is   not   a   punishment   and   carries   with   it   no  evil consequences and so Article 311 is not attracted. But even if the Government   has,   by   contract   or   under   the   rules,   the   right   to terminate   the   employment   without   going  through   the   procedure prescribed for inflicting the punishment of dismissal or removal or reduction   in   rank,   the   Government   may,   nevertheless,   choose   to punish the servant and if the termination of service is sought to be founded   on   misconduct,   negligence,   inefficiency   or   other disqualification, then it is a punishment and the requirements of Article 311 must be complied with."

The order of termination of services of Respondent No.1 recites that “the Rajasthan High Court, Jodhpur, after examining all the relevant records has been of the opinion that Shri Ved Priya has not made sufficient use of his opportunities and has otherwise also failed to give satisfaction as a Such an exercise undoubtedly is subjective, therefore, Respondent No.1’s contention that confirmation of probationers must be based only on objective   material   is   far fetched.   Although   quantitative  parameters are ostensibly fair, but they by themselves are imperfect indicators of future performance.  Qualitative   assessment   and   a   holistic   analysis of non quantifiable factors are indeed necessary. Merely because Respondent No. 1’s A C Rs were consistently marked ‘Good’, it cannot be a ground to bestow him with a right to continue in service. 

Furthermore, there is a subtle, yet fundamental, difference between termination of a probationer and that of a confirmed employee. Although it is undisputed that the State cannot act arbitrarily in either case, yet there has to be a difference in judicial approach between the two. Whereas in the case of a confirmed employee the scope of judicial interference would be more expansive given the protection under Article 311 of the Constitution or the Service Rules but such may not be true in the case of probationers who are denuded of such protection(s) while working on trial basis. 

True  it  is  that the  form of  an  order is  not crucial   to  determine whether it is simplicitor or punitive in nature.  An order of termination of service though innocuously worded may, in the facts and circumstances of a peculiar case, also be aimed at punishing the official on probation and in that case  it would  undoubtedly  be an  infraction of Article 311 of the Constitution.  The Court in the process of judicial review of such order can always lift the veil to find out as to whether or not the order was meant to visit the probationer with penal consequences.  If the Court finds that the  real motive behind the order was to `punish’ the official, it may always strike down the same for want of reasonable opportunity of being heard.

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