1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICATION NO. 653 OF 2009 IN LETTERS PATENT APPEAL (ST) NO. 11104 OF 2009 IN WRIT PETITION NO. 4579 OF 2008 (Vidarbha Irrigation Development Corporation and another .v. Damodar Ramkrishna Naikwade and another) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri J.B. Kasat, Advocate for the applicants. CORAM : A.H. JOSHI AND PRASANNA B. VARALE, J J . 20TH JANUARY, 2010. 1. Heard. 2. This is an application for condonation of delay of 206 days caused in filing the present Letters Patent Appeal. 3. Considering the delay caused and that the dispute is between the employer and employee, this Court considers it appropriate to look into the merit of the appeal. 4. This Court is of the view that in case the appeal does not have any merit, the respondent should not be unnecessarily vexed for defending the application for condonation of delay. The Court, therefore, called upon the appellants to argue the appeal on merit. 5. It is seen that the only point agitated in the appeal is as narrated below :- “The complaint by workman cannot be entertained unless the complaint discloses that respondent is an industry and the complainant is a workman. Therefore learned Single Judge erred in refusing to entertain employer's plea.” 6. The learned Advocate for the appellants has placed reliance on the reported judgment of the Apex Court in the case of State of 2 Gujarat and others .v. Pratamsingh Narsinh Parmar (2001(9) SCC 713) and specific finding recorded in para 5 which reads as under :- “If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes “an industry”. Ordinarily, a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function.” 7. The learned Advocate however is not in a position to dispute basic proposition namely the jurisdiction has to be presumed and one who claims ouster as to plead and prove the plea of ouster. 8. Admittedly, in the written statement, the appellant's claim that the applicant/appellant is not an “industry” and that for the factual grounds that the complainant is not a `workman' were not agitated. 9. Admittedly no evidence is on record to prove said plea of ouster of jurisdiction based on facts, to prove respective status. 10. In this background, the judgment of the learned Single Judge is not shown to be erroneous. This being the position as to the merit of the case, the appeal has no merit. In view of this aspect, the application for condonation of delay cannot be entertained else, the result would be to vex the already vexed workman again and again. 11. Civil Application is, therefore, rejected with costs. JUDGE JUDGE *rrg.