1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CAZ NO. 656/2011 IN LPA ST. NO. 13152/2011 IN WRIT PETITION NO. 4250 OF 2007 (Shri Bandu Chokhaji Awathare vs. The Ex. Engineer, P.W.D., Wardha) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI & A.B. CHAUDHARI, JJ. NOVEMBER 08, 2011. Heard Shri Kalbande, learned counsel for the applicant/ appellant and Shri Ahirkar, learned AGP for the respondent. The prayer is to condone delay of 85 days in filing LPA Stamp No. 13152 of 2011. Shri Kalbande, learned counsel relies upon the statement made on affidavit to support prayer for condonation of delay. The learned AGP states that even if the affidavit is perused, the reasons are not just and sufficient. In the alternative, the learned AGP contends that in writ petition filed by State Government under Articles 226 and 227 of Constitution of India, the learned Single Judge has looked into all relevant evidence and case law and thereafter has found the ground of relief to the appellant in belated reference 2 unsustainable. It is pointed out that because of said delay, the records which are required to be preserved for five years were also destroyed in the meanwhile. Shri Kalbande, learned counsel relies upon the judgment in the case of Mahavir Singh vs. U.P. State Electricity Board & Ors., reported at 1999 II CLR 7. We find that, there the Hon'ble Apex Court has held that only delay in raising reference is not fatal and equities can be balanced. In the case of Dharappa vs. Bijapur Co-op. Milk Producers Societies Union Ltd., reported at AIR 2007 SC 1848, in para 27, the Hon'ble Apex Court has evaluated the impact of such delay. In this case, the Hon'ble Apex Court has held that where the evidence is lost or records are destroyed due to such passage of time, the belated reference cannot be allowed. Here, the learned Single Judge has noted that in the meanwhile, the relevant records were destroyed by the department. Shri Kalbande, learned counsel has contended that the Labour Court has recorded a finding that the employer has not proved the destruction of record. The provisions of P.W.D. Manual contemplate destruction of records after five years. The burden was, therefore, upon the applicant/ workman to show that though the period of 9 to 10 years had expired, the records were still available. The Labour Court has not 3 approached the controversy correctly. The learned Single Judge has, therefore, rightly found that the action of Labour Court in drawing adverse inference and granting relief is unsustainable. Insofar as the question of condonation of delay is concerned, loss of service and residence at a distance of about 90 kms. from Nagpur is being pressed into service as a reason. We do not see any justification in said reason. Hence, in view of this discussion, we reject the prayer for condonation of delay. Accordingly, civil application is disposed of. JUDGE JUDGE *GS.