1 wp5475-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5475 OF 2011 Smt.Seema Chandra Kant Kharade .. Petitioner Vs. Deputy Director, Health Services and Ors. .. Respondents Mr.T.R.Yadav and Mr.M.A.Malunjkar for the petitioners Mr.P.G.Sawant, ‘B’ Panel for respondents CORAM: K.K. TATED, J. DATE: 19th JULY, 2011 PC: 1. Heard the learned counsel for the petitioner and the learned A.G.P. for the respondents. 2. By this petition, under Articles 226 and 227 of the Constitution of India, petitioner original applicant challenges the order dt. 30.6.2011 passed by the learned Member, Industrial Court Satara rejecting the petitioner’s revision application against the order below Ex.2 dated 15.11.2010 passed by the learned Judge, Labour Court, Satara. A few facts of the matter are as under: 2 wp5475-11.doc 3. It is the case of the petitioner that pursuant to the advertisement appearing in the newspaper of ‘Daily Pune Prabhat’ dated 22.3.2008, for inviting the applications from the candidates for filling up the vacant posts in Staff Nurse (Adhiparicharika) and also other posts, she being eligible for the post of ‘Staff Nurse’, had applied for the said post by submitting written application. Thereafter, respondent no.1 had issued a letter dt.2.5.2008 to the petitioner asking her to appear for the written examination that was to be conducted on 18.5.2008. Accordingly, the petitioner appeared for the said examination. She passed the written examination. Thereafter, the respondent no.1 asked the petitioner to appear for interview with the necessary documents. Accordingly, the petitioner had attended/appeared for an interview and she was interviewed by the Committee. 4. Pursuant to the said interview, the respondent no.1 issued an order dt.2.7.2009 informing the petitioner that she is appointed in the post of Staff Nurse at the Rural Hospital, Kale Dhon in the wage scale of Rs.5000­150­8000. Pursuant to the said appointment letter, the petitioner joined the duty of Staff Nurse at the Rural Hospital, Kale Dhon, Dist. Satara i.e. Respondent 3 wp5475-11.doc no.3 w.e.f. 13.07.2009 and she is working there since then. The petitioner got reliable knowledge that the respondent herein issued a letter dt.2.2.10 to the effect that the appointment orders issued to the petitioner and other employees were not issued by the office of the respondent no.1 and therefore, to take further necessary action, the respondent instructed their officers. Apprehending termination of her services, the petitioner filed a complaint (ULP) No.27 of 2010 on 10.2.10 in the Labour Court at Satara under section 28 read with Schedule IV Item no.1 (a) (b) (c) (d) (f) and (g) of the MRTU and PULP Act, 1971 for following reliefs. “a. An enquiry may please be made and it may please be decided and declared that, the respondents herein have engaged in, are engaging in and also most likely to engage in the acts of unfair labour practices within the meaning of Schedule IV, item no.1(a), (b), (c), (d), (f) & (g) of the Act. b. The respondents may please be directed to cease and desist from and also not to engage in the acts of unfair labour practices forthwith. c. The respondents may please be directed to not to discharge / dismiss the complainant’s services. d. Any other relief deemed just and proper may also please be granted to the Complainant in the interest of justice. e. cost of this Complaint proceeding may also please be awarded to the Complainant.” 4 wp5475-11.doc 5. In the said complaint on the same day, petitioner preferred application for interim relief under section 30(2) of the MRTU and PULP Act, 1971 restraining the respondents from discharging or dismissing the petitioner’s service pending the hearing and final disposal of the main complaint. In the said interim application, respondents filed their affidavit in reply dated 3.4.10 and opposed the interim relief. The Labour Court by its order dt.15.11.2010, rejected the petitioner’s application for interim relief. Being aggrieved by the said order, petitioner preferred review application under section 44 of the MRTU and PULP Act, 1971 on 15.12.2010. The said Review application was dismissed by the Industrial Court by impugned order dt. 30.6.11. 6. The learned counsel for the petitioner submits that both the courts below erred in coming to the conclusion that the petitioner failed to make out case for interim relief. He further submits that both the courts failed to consider that the respondents issued appointment letter and pursuant to that letter, petitioner joined the services as a Nurse and since then, she is working with them. He further submits that both the courts failed to consider that the petitioner’s appointment was 5 wp5475-11.doc according to law and therefore, there is no question of terminating her services on the ground that appointment letter issued by Deputy Director, Shri Doiphode is forged document. He further submits that the Trial Court erred in not granting the interim relief though the petitioner made out a prima facie case. The petitioner was likely to suffer irreparable injury in case interim relief is not granted and the balance of convenience was also in favour of the petitioner. Thus, the learned counsel for the petitioner submits that the impugned orders passed by both the courts below are liable to be set aside and the application filed by petitioner dated 10.2.2011 be allowed restraining the respondents from discontinuing the petitioner’s services. 7. Per contra, the learned A.G.P. appearing on behalf of the respondents vehemently opposed the present petition. He submits that both the courts below considered the documentary evidence on record and held that the petitioner failed to make out any prima facie case for injunction restraining respondents from discontinuing her services as Nurse. He submits that pursuant to the advertisement appearing in the newspaper ‘Daily Pune Prabhat’ dt.22.3.2008, 6 wp5475-11.doc the petitioner made application for the post of ‘Staff Nurse’. Pursuant to her application, the Deputy Director Pune by its letter dt.2.5.2008 allowed the petitioner to appear for written examination. The said written examination was conducted on 18.5.2008. In the said written examination, the petitioner secured 35 marks out of 90 according to the mark list. Therefore, the petitioner was never called for the oral interview. He submits that the petitioner in collusion with Deputy Director obtained the appointment letter and joined the services. As soon as they learnt the said fraud, they started taking action. On the basis of these submissions, the learned A.G.P. appearing on behalf of respondents submits that there is no substance in the present petition. Both the courts below considered the facts on record and came to the conclusion that the petitioner played fraud and therefore, rejected her application for interim relief. In view of these facts, petition is liable to be dismissed with costs. 8. I have gone through the complaint dated 10.2.2010, the application of the same date for interim relief, order dt. 15.11.2010 passed by the Labour Court, Satara and order dt. 30.6.2011 passed by learned Member, Industrial Court, Satara 7 wp5475-11.doc in Review (ULP) No.47 of 2010. I have heard the learned counsel for the parties. 9. The following facts are no longer in dispute. 10.The petitioner is in the employment of the respondent no.1 as a ‘Nurse’ on the basis of appointment order dt.2.7.2009 issued by then Deputy Director Shri Doiphode. She had completed her Nursing course from Dhanrajgiriji Hospital, Solapur. She appeared for the written examination for the post of Nurse in view of advertisement in the Pune Edition of ‘Daily Pune Prabhat’ dated 22.3.2008. She secured 35 marks out of 90 marks in written examination and as such she was not eligible for being called for interview as the candidates who secured marks 45 onwards were called for interview and her name did not appear in the select list of candidates. Therefore, she should not have got the appointment but she some how managed for the appointment order from the then Deputy Director of Health (Mr.Doiphode) and on the basis of the said order, she was appointed and posted as a Nurse. 11.On the basis of the above facts, it cannot be held that the petitioner made out prima facie case for the grant of interim relief claimed by her. She had secured 35 marks out of 90 in 8 wp5475-11.doc the written examination and as such she was not eligible for interview and was not called for interview. Her name did not appear in the select list of candidates. Therefore, prima facie her appointment as Staff Nurse appears to be improper and as such, it must be held that she failed to make out prima facie case for grant of interim relief claimed by her. As such, it cannot be said that she would suffer irreparable injury if she is discontinued from services and the balance of convenience also does not lie in her favour. If she is continued in service, the candidate duly selected for the post will be denied the appointment. The grant of interim relief is in the nature of temporary injunction pending the proceeding. It is discretionary equitable relief. One who claims equity must approach the court with clean hands which is not the case with the petitioner. The authorities cited before the Industrial Court were also pressed before this court by the learned counsel for the petitioner. I have perused them and find they are all distinguishable on facts and do not support the case of the petitioner for interim relief. Consequently, there is no legal infirmity in the orders of the courts below and do not call for any interference by this court. Hence, there is no substance in 9 wp5475-11.doc this petition. 12.Writ Petition is dismissed accordingly. 13.No order as to costs. (K.K.TATED,J.)