Employer can terminate employee during probation period due to poor performance: SC

Gulam Rabbani :
In the full text of a verdict the Appellate Division of the Supreme Court observed that the employer is legally authorized to assess the competency of an employee during the period of probation and the employer is entitled to terminate the service of the employee during the probation period due to unsatisfactory performance.
A six-member bench of the Appellate Division headed by Chief Justice Hasan Foez Siddique passed the observation in the verdict that allowed some appeal petitions filed by the state against a decision of the Administrative Appellate Tribunal.
According to the case documents, an advertisement for recruitment of Upazilla or Thana Election Officer was published on September 23 in 2003. In response to the advertisement the respondents applied for the post.
Finally 328 candidates including the respondents were selected and directed to join the said posts by September 7 in 2005.
It transpires from the record that during the probation period all the appointees including the respondents had been asked by the Election Commission Secretariat to sit for the suitability test held by the Institute of Business Administration, University of Dhaka.
All the appointees sat for the said test and all of them except the respondents became successful in the test. Thereafter, the Election Commission Secretariat terminated the appointment of the respondents with effect from September 6 in 2007. Being aggrieved the respondents served a legal notice to the Election Commission on September 6 in 2007 and thereafter filed the cases before the Administrative Tribunal No 1, Dhaka to reinstate them in their service.
Upon hearing all the parties, the Administrative Tribunal dismissed both the cases on March 23 in 2009. The respondents then preferred to appeal before the Administrative Appellate Tribunal in Dhaka.
On conclusion of hearing both sides, the Administrative Appellate Tribunal on April 12 in 2010 allowed the appeals setting aside the termination order of the respondents from service and also directed to reinstate them in their service with arrear salary and other benefits.
Later the state represented by its cabinet Secretary filed leave to appeal petitions before the apex court against the order of the Appellate Tribunal. After hearing the parties the apex court on September 1 in 2022 delivered its judgment. The full text of the verdict was released on the SC website recently.
The apex court said in its verdict that the employees had been terminated from the service due to their dissatisfactory performance in the service during the probation period. But it is argued by the respondents that the said order was not termination simplifier rather it was punitive for which the termination order of the respondents was illegal.
During the hearing, the counsels for the respondents further contended that the Election Commission Secretariat purportedly terminated the service of the respondents resorting to pick and choose policy.
Lawyer Salahuddin Dolon, one of the counsels for the respondents, contended that the respondents had been terminated during the probation period due to their appointment was made during the regime of another political government and as such the termination was not simplifier rather punitive.