No Deemed Confirmation On Completion Of Probation; Written Order Mandatory Under Model Standing Orders: Bombay High Court
The Bombay High Court has held that mere completion of the probation period under the Model Standing Orders does not automatically result in deemed confirmation of an employee. The Court clarified that confirmation requires a specific order in writing, and in its absence, no right to permanency accrues.A Division Bench of Justices G.S. Kulkarni and Aarti Sathe was hearing a Letters Patent...
The Bombay High Court has held that mere completion of the probation period under the Model Standing Orders does not automatically result in deemed confirmation of an employee. The Court clarified that confirmation requires a specific order in writing, and in its absence, no right to permanency accrues.
A Division Bench of Justices G.S. Kulkarni and Aarti Sathe was hearing a Letters Patent Appeal filed by employees challenging their termination after completion of probation. The appellants contended that under Clause 4A of the Model Standing Orders, completion of the prescribed probation period entitled them to be treated as permanent employees.
The Court examined Clause 4A of Schedule I along with Rule 32 of the Model Standing Orders and held that these provisions must be read harmoniously. It noted that while Clause 4A contemplates that a probationer “shall be made permanent,” it expressly requires an order in writing for such confirmation.
At the outset, we may observe that Item 4-A of Schedule-I requires a holistic reading. It provides that every probationer who has completed a period of three months of uninterrupted service in the post in which he was provisionally employed “shall be made permanent” in that post by the Manager, by an order in writing, within seven days from the date of completion of such service. Thus, a necessary prerequisite is the performance of an overt act, namely, making such probationer permanent by issuing an order in writing,” the Court observed.
Rejecting the argument of deemed confirmation, the Court held that issuance of a written order is a mandatory prerequisite, and the provision does not dispense with this requirement. It further observed that the second proviso permits termination of a probationer if services are found unsatisfactory after completion of probation, reinforcing that confirmation is not automatic.
The Court emphasised that Model Standing Orders cannot be interpreted to create automatic permanency in the absence of a conscious decision by the employer assessing the employee's performance. It also noted that the appointment letters in the present case specifically provided that confirmation would be subject to satisfactory performance and would be communicated separately.
On facts, since no confirmation orders were issued and the employees were discharged upon completion of probation, the Court held that such discharge was a simpliciter termination and did not amount to illegal termination or unfair labour practice.
Accordingly, the High Court upheld the order of the Industrial Court and dismissed the appeal, reiterating that completion of probation alone does not confer permanency without a written confirmation order.
Case Title: Dhanraj R. Mahale & Ors. vs. Kirloskar Oil Engines Ltd. & Ors. [Letters Patent Appeal No. 151 of 2009]
Case Title: 2026 LiveLaw (Bom) 225