If HR has said your probation will not be confirmed, or you have already been terminated during probation in a Karnataka office, what you can claim turns on one number. It is six months of continuous service, because Section 39(1) of the Karnataka Shops and Commercial Establishments Act, 1961 protects only an employee with not less than six months of continuous service under that employer. Below that line your appointment letter does the work, with Section 17(2) of the Code on Wages, 2019 fixing when your wages have to reach you. Above it the employer needs a reasonable cause and a month's notice or pay in lieu, and you get an appeal.
Part of the employment and labour law practice at S Jain & Attorneys, Bangalore.
This page is for a private-sector employee, not a government servant. Most reported law on probation is service law, and carrying it into a private job is the common error here.
Outside Karnataka your own state's Shops Act fixes its own threshold, so work from that Act.
| What you want to know | Under six months of continuous service | Six months or more of continuous service |
|---|---|---|
| Does a reason have to be given | Only what your probation clause requires, often nothing | A reasonable cause, Section 39(1) |
| Notice or pay in lieu | Whatever your clause fixes, commonly seven days, fifteen days or none | One month's previous notice or pay in lieu, Section 39(1) |
| Forum that can hear a challenge | None under the Karnataka Act. An industrial dispute if you are a worker, otherwise a contract claim | Appeal to the Assistant Commissioner of Labour, Section 39(2) with Rule 25(1), then revision to the District Judge, Section 39(4) |
| What that forum can order | Compensation on the contract, or what a Tribunal thinks fit | Compensation the appellate authority determines, capped at one month's pay for every year of service, where the employer does not agree to reinstate, Section 39(3) |
| When your wages are due | Two working days from removal, Section 17(2), Code on Wages | The same two working days |
| Pregnancy or retaliation | Separate provisions apply, and are not keyed to six months, but carry their own eligibility tests | Those provisions apply as well as Section 39 |
Can they end my probation without a reason or a warning?
Under six months, usually yes, if your appointment letter says so. No statute obliges a private employer in Karnataka to warn a probationer, run a review cycle or record reasons before the six-month mark. The document it wrote is what binds it, so the probation clause and the notice clause are the operative law of your case.
Four things in that clause decide most of the argument. How long probation lasts. Whether confirmation happens on the date it ends or only when the employer says so in writing. How much notice either side gives during probation. And whether the employer kept the right to end the contract during probation without giving a reason, because that is the sentence it will rely on.
A statement in a meeting is not a termination. Until a letter ends your employment you remain entitled to be paid, so ask for the decision in writing with the reason recorded.
Three documents are worth pinning down today.
Your probation clause
The exact words on how long probation runs, whether confirmation must be in writing, and the notice.
The date you joined
Your joining date fixes when six months of continuous service is reached, the only date Section 39 turns on.
Concerns put in writing
Every email or review note recording a concern about your work, and the absence of any before the conversation.
Does the six-month rule in the Karnataka Shops Act protect me at five months?
Not yet, and the reason has nothing to do with your status. Section 39(1) bars the removal or dismissal of an employee with six months of continuous service except for a reasonable cause and after one month's previous notice or pay in lieu. The section counts service. It does not say permanent, it does not say confirmed, and it does not exclude a probationer.
If your probation is extended and you cross six months with the same employer then, on the section's own words, Section 39 reaches you although nobody has confirmed you. An employer buying time by extending probation is moving you into the protected column, which is why a letter is often timed to land before the sixth month closes.
The proviso is narrower than it is made to sound. It says only that where misconduct is brought on record with proof at an enquiry held for the purpose, the employee is not entitled to the notice or pay in lieu. It removes the notice, not the reasonable cause, and a non-confirmation with no enquiry behind it does not engage it at all.
The exception most likely to matter here is Section 3(1)(h), which takes persons occupying positions of management outside the Act. Section 3 carries other exclusions as well.
Key takeaway. Section 39 counts service, not status. Six months of continuous service with the same employer brings in reasonable cause, a month's notice or pay and an appeal, whether or not anyone confirmed you.
Is a termination during probation a retrenchment under the Industrial Relations Code?
At five months, no, and it fails twice over. First on the definition. Section 2(zh) of the Industrial Relations Code, 2020 defines retrenchment as termination by the employer for any reason other than punishment by way of disciplinary action, but excludes a contract terminated under a stipulation in that behalf contained therein. A probation clause letting either side end the contract on short notice is such a stipulation.
Courts read the identical words in the repealed law that way. In Deccan Charters Private Limited v Sarita Tiwari, decided by the Delhi High Court on 27 August 2019, the Court treated as settled the rule that ending a probation on the appointment letter's own stipulation is not retrenchment, collecting M. Venugopal v Divisional Manager, (1994) 2 SCC 323, Escorts Limited v Presiding Officer, (1997) 11 SCC 521 and Kalyani Sharp India v Labour Court No. 1 Gwalior, (2002) 9 SCC 655. It then decided that case on a further ground of its own, that a probationer is not a workman at all. That ground is not settled law across India, but it is what will be argued against you.
The second failure is arithmetic. Section 70 of the Code imposes its conditions precedent only where a worker has been in continuous service for not less than one year, so at five months neither notice nor compensation is owed even if the label fitted.
What survives is the right to be heard. Section 2(q) brings an individual worker's dispute arising out of discharge or termination within an industrial dispute, and Section 4(9) deems it one although no other worker and no union is a party. Neither sets a minimum period of service, so at five months the money is shut off while the forum stays open, if you are a worker at all, which the worker status guide answers. The exclusion also needs a stipulation actually in the contract, so a letter with no probation clause gives the employer nothing to stand on.
My probation ends soon and nobody has confirmed me. Am I deemed confirmed?
Not by the passing of time alone. The Supreme Court set out the framework in High Court of Madhya Pradesh v Satya Narayan Jhavar, decided on 14 August 2001, and it turns on the words of the instrument. Where a period is specified and may be extended with no maximum prescribed, continuing past it confirms nothing. Where a maximum is fixed beyond which probation cannot be extended, the inference is that you stand confirmed once it expires without a termination order. Where a maximum is fixed but confirmation also needs a positive act, expiry alone confirms nothing.
In Head Master, Lawrence School Lovedale v Jayanthi Raghu, decided on 16 March 2012, the Supreme Court held that the status of confirmation has to be earned and conferred, that it does not occur by efflux of time, and that where it is hedged by a condition an affirmative act by the employer is required.
Both rest on statutory service rules or an institution's own rules. A private employee cannot borrow from them a right to reinstatement or to an enquiry. What transfers is the method, because Jhavar itself speaks of a period specified in the service rules or in the letter of appointment. Wording that deems you to continue on probation until confirmed in writing puts you in the first category.
That also answers whether probation can be extended again and again: on your contract alone, as often as the clause allows. One ceiling does exist. In Schedule C of the Model Standing Orders, 2026, the service sector schedule, standing order 2(5) defines a probationer as a worker provisionally employed in a permanent vacancy who has not completed six months of service in it, and allows one extension, on an assessment of performance, of not more than three further months. Standing order 2(2) treats as a permanent worker anyone who has satisfactorily completed a probationary period of six months in that establishment, so on that model probation has an outer limit of nine months.
Check whether it reaches your employer. By Section 28(1) that chapter bites only where three hundred or more workers are employed, or were on any day of the preceding twelve months, and by Section 29(2) the model governs only until certified standing orders replace it. Where it does reach your employer it cuts both ways, because standing order 23(2) gives a terminated probationer no notice and no pay in lieu, though that sub-paragraph reads awkwardly and the appointment letter is still the first place to look.
Common mistake. Resigning in the meeting, or accepting an offer to resign so the record reads better. A resignation is not a removal under Section 39, and because retrenchment means a termination by the employer it is not that either, so it moves on to you the burden of proving later that you were pushed.
What notice and what money am I owed, and by when?
The notice comes from your contract. The timing for your wages comes from statute, and it is short. Section 17(2) of the Code on Wages, 2019 gives an employee who has been removed, dismissed, retrenched or has resigned two working days for the wages payable, and Section 2(k) defines an employee widely enough to take in managerial staff, so this turns neither on worker status nor on length of service. Those two days run on wages as Section 2(y) defines them, so pay in lieu of notice is a contract claim with no clock of its own. Where an employer argues that a non-confirmation is not a removal, the fallback is the monthly cycle in Section 17(1)(iv), payment before the seventh day of the following month.
If the money does not come, the Code provides a forum. Section 45(1) has the State Government appoint a claims authority by notification, so ask the Labour Department whether one has been notified for your area. Section 45(4) lets the employee apply and Section 45(6) allows three years, entertained later on sufficient cause. The authority may add compensation of up to ten times the amount determined, must issue a certificate of recovery to the Collector or District Magistrate if the employer still does not pay, and is asked by Section 45(2) to decide within three months.
Ask for a calculation rather than a lump sum. Notice pay worked out on basic pay alone where the contract promises monthly salary is the commonest shortfall. Where nothing arrives, the route is in the full and final settlement guide.
What if the real reason is my pregnancy, a complaint I raised or my leave?
Then your length of service stops being the point, though the maternity chapter sets conditions of its own. Dismissal during a maternity absence is dealt with by Section 68 of the Code on Social Security, 2020, which carries its own prohibition and its own short appeal period. The whole position, including whether you are covered at five months, is in the guide on termination during pregnancy or maternity leave.
If the trigger was a complaint you raised, the route runs through the Industrial Relations Code and again turns on worker status. A discharge in the colourable exercise of the employer's rights, or for patently false reasons, is prohibited by Section 84 with the Second Schedule, as set out in the unfair labour practices guide. Section 4 gives a worker one year to take an individual grievance to the committee that an establishment with twenty or more workers must run.
Here the case is the dates, so write three down today: the protected act, the first recorded concern about your work, and the conversation.
Deadline warning. Wages are due within two working days of removal or dismissal under Section 17(2) of the Code on Wages, 2019. The Section 39(2) appeal runs thirty days from the day the order is communicated to you, under Rule 25(2) of the Karnataka Shops and Commercial Establishments Rules, 1963, admitted later only on sufficient cause. A worker's direct application to the Tribunal runs out two years after the termination, Section 4(11) of the Industrial Relations Code, and Section 4(10) with Section 4(5) opens that route only where twenty or more workers are employed and only forty-five days after he has applied to a conciliation officer. An individual grievance to the committee runs out one year, and a claim for unpaid wages three years unless the authority entertains it late.
What should I do in the two weeks before the letter comes?
Use the time to fix the record, not to argue about the rating.
- Read the probation and notice clauses to the full stop, noting whether confirmation requires writing.
- Write down your joining date and count six months from it. The Act does not say what breaks continuity, so keep your leave records and payslips.
- Ask in writing for the assessment behind the non-confirmation, and for anything on record about your targets.
- Ask in writing which standing orders apply, and keep the reply or the silence.
- Keep your own service record outside the company system. Offer and appointment letters, payslips and leave balance are yours. Client data and code are not.
- Do not resign, and do not put your name to any exit document handed to you in a meeting.
- When the letter arrives, ask in writing for your wages to the last day, notice pay and documents, and record any credit as received without prejudice.
The useful question in a probation file is rarely whether the assessment was fair. It is arithmetic and paper, and whether the sum in dispute justifies a contested case. At five months that sum is usually the notice your clause gives, the unpaid part of the running month and a leave balance. That is why the fortnight before the letter counts for more than the two months after it.
Three figures carry most of the weight here.
Two working days
Wages on removal or dismissal are payable within two working days, Section 17(2) of the Code on Wages, 2019.
Six months of service
Section 39 of the Karnataka Act begins at six months of continuous service, counted from your joining date, not confirmation.
Nine months of probation
Under Schedule C of the Model Standing Orders, 2026, probation is six months extendable once by three, where those orders apply.
Frequently Asked Questions
Can my employer end my probation without giving any reason?
Below six months of continuous service, usually yes, if your probation clause keeps that right. Section 39(1) of the Karnataka Shops and Commercial Establishments Act, 1961, which requires a reasonable cause, starts only at six months.
Am I entitled to notice or notice pay during probation?
Only what your appointment letter gives you. The one month in Section 39(1) applies after six months of continuous service, and Section 39(7) preserves any longer notice period your contract promises.
I have crossed six months but nobody confirmed me. Does Section 39 apply?
Yes. The section protects an employee who has put in six months of continuous service under that employer. It counts service, not confirmation, and it does not exclude a probationer.
Can my probation be extended again and again?
On your contract alone, as often as the clause allows. Where the Model Standing Orders, 2026 reach the establishment, Schedule C allows one extension of not more than three months on an assessment of performance, and it governs only until certified standing orders replace it.
Is a probation termination retrenchment, so can I claim retrenchment compensation?
At five months, no. Section 70 of the Industrial Relations Code, 2020 applies only to a worker with at least one year of continuous service, and Section 2(zh) excludes a contract terminated under a stipulation contained in it.
By when must my wages be paid after a probation termination?
Within two working days of removal or dismissal under Section 17(2) of the Code on Wages, 2019. If the employer says it was not a removal, Section 17(1)(iv) still requires payment by the seventh of the following month. Pay in lieu of notice is a contract claim and carries no statutory clock.
Should I resign if HR says I will not be confirmed?
Take advice before you do. A resignation is not a removal under Section 39, and retrenchment means a termination by the employer, so it is not that either. It also puts on you the burden of proving later that it was extracted under pressure.
Do the court rulings about probationers in government service help a private employee?
Only as a method of reading your own clause. Those decisions rest on statutory service rules and on Article 311, and a private employee cannot borrow from them a right to an enquiry or to reinstatement.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
