India: Termination Of Employment Of Probationary Employees - Legal Issues

Last Updated: 22 September 2016
Article by Krishna Vijay Singh

Where there is uncertainty regarding suitability of a candidate for a particular job, it is usual to offer employment to such candidate on a probation basis. As the name 'probation' suggests, the employment offered is to ascertain or test the suitability of the employee on probation for the job. Consequently, it is clear that so long as an employee is on probation, continuation of his or her employment is not certain, and is subject to the employer being satisfied that the employee is suitable for the job.

The employment letter or the contract of employment may prescribe the manner in which the suitability (or confirmation) is to be communicated by the employer. It could be express or implied. The terms of the employment letter or contract may prescribe that the employee would be deemed to have completed his or her probation period successfully at the end of the probation period unless his or her employment is terminated prior to the date of probation period or the probation period is extended. Alternatively, the employment letter or contract may provide that probation period would continue till such time a confirmation is not given in writing by the employer.

In the event the employer is not satisfied with the performance of an employee on probation, the employer is free to terminate the services of the employee before the completion of probation period subject to the notice period, if any, prescribed in the employment letter or company's policy. Since the basic idea behind keeping an employee on probation is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment, there is not even the need for an employer to wait for the employee to complete his or her probation period, before termination, if the employer is dissatisfied with the performance. It is also settled law that the employer is not under an obligation to establish or prove the unsatisfactory performance of a probationer through an enquiry prior to terminating his or her services. Nevertheless, it is important for employers to be aware of the legal issues surrounding termination of an employee on probation.

The termination is valid so long as it is done by a non-stigmatic order. In this regard, it is noteworthy that the Indian courts have consistently held that the termination of a probationary employee is to be done by a non-stigmatic order and principle of natural justice need not be followed while passing such order. Reviewing the case law will also assist us in understanding how the courts have interpreted 'stigmatic' and 'non-stigmatic' orders.

The Supreme Court of India in the matter of Chaitanya Prakash and Anr. Vs. H. Omkaraappa [(2010)2SCC623] observed that the termination order referring to the unsatisfactory services of the probationer cannot be said to be stigmatic and there is no need to follow the principles of natural justice while terminating the services of a probationer. Recently, Delhi High Court in The Managing Committee of Shiksha Bharati Senior Secondary Public School Vs. Director of Education and Anr. (2013) has taken a similar view wherein the respondent who was a primary teacher working on probation with the petitioner /school, was terminated by the school with immediate effect before the expiry of extended period of probation. The issue which came up for adjudication before the court was whether termination order stating that the employee lacked professional capability or was negligent and careless or her conduct was deplorable and had indulged in acts of indiscipline and insubordination would amount to order being stigmatic. The Hon'ble Court held that "law with respect to termination of services of a probationer is now well-settled and has to be by a non-stigmatic order. However, it has been held that stating that the performance is not satisfactory or giving of facts in the termination order will not amount to the termination order being a stigmatic one. Also the principles of natural justice have not to be followed before termination of services of a probationer. If an enquiry is held and the enquiry report forms the foundation of termination of services of a probationer, only then, principles of natural justice are required to be followed, however, where the enquiry against a probationer is only for determining employee's suitability for continuing in service and the enquiry report only forms the motive for removal (as differentiated from a foundation for removal) then, a detailed enquiry in terms of the service rules is not necessary."

Similarly, reference must be made to the judgment in the matter of Shri Syed Mohiuddin Ashraf & Anr. Vs. M/s. Central Electronics Limited (2013) wherein the Hon'ble Delhi High Court had taken the same view, with respect to the termination orders of the petitioners who were working with the respondent as probationary engineers. In the present case it was contended by the petitioners that their orders of termination were void as they are violative of principles of natural justice, arbitrary, stigmatic and punitive in nature and without any reason as the petitioners had rendered satisfactory services. In the present case, the Hon'ble Court brushed aside the contentions taken by the petitioners and it was held that the principles of natural justice need not be followed while terminating the services of a probationary officer. In so far as the plea of stigmatic order is concerned, the Hon'ble court observed that since the orders of termination only states that petitioners are unfit for continuing their work thus, the expression used in the order cannot be said as stigmatic in nature.

Additionally, in Progressive Education Society v. Rajendra [(2008)3SCC310], the Hon'ble Apex Court examined the correctness of the order passed by the School Tribunal quashing the termination of the service of respondent No. 1 on the ground of unsatisfactory performance during the period of probation and observed that "The law with regard to termination of the services of a probationer is well established and it has been repeatedly held that such a power lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds the performance of the probationer to be unsatisfactory during the period of probation. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the probationer's service, the management or the appointing authority is not required to give any explanation or reason for terminating the services"

Therefore, on a conjoint reading of the above observations by the various courts it is abundantly clear that once the facts stated in the termination are only the reasons and the conclusions for holding that the employee is unsuitable for his services, then the order cannot be said to be stigmatic. However, if the order imputes something more than unsuitability for the post in question then the order may be considered to be stigmatic. Moreover, it is not necessary for an employer to follow principles of natural justice even when the termination of the probationer is ordered on the ground of unsatisfactory service.

However, care should be taken by the employer in the event the employee is discharged by the employer on the basis of misconduct or if there is a nexus between the allegations of misconduct and discharge. In such an event, the order of termination, even if couched in language which is not stigmatic, may amount to a punishment for which a departmental enquiry may be imperative.

Originally published by

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.