1 wp-4707-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO.4707 OF 2009 Shri.Madhukar Dattatraya Mahaval ..Petitioner Vs. Shri.Vishwanath Vithal Shetye ..Respondent .... Shri.M.S.Karnik Adv. for petitioner None for the Respondent .... CORAM : SMT.V.K.TAHILRAMANI, J. DATED : 20th July, 2009 P.C.: 1. Heard the learned counsel for the petitioner. 2. The case of the respondent is that he was in employment of the petitioner from November, 2000. In 2001, when he was working at a site constructing a bridge, at that time, he was directed by the petitioner to carry some material in a truck. Some of the said material fell on the left leg of the respondent. He was injured. He came to be operated and he suffered disability of 100%. Hence, WC(F) No.10 of 2002 came to be filed by the respondent against the petitioner before the Labour Court, Nasik. By order dated 17th 2 wp-4707-09 February, 2007, the petitioner was directed to deposit in Court the amount of Rs.53,660/- along with interest at 9% per annum thereon from 29th July, 2001. 3. The contention of the petitioner is that the said order was passed exparte, hence, he preferred Misc. W.C.A.(Restoration) No.73 of 2007 for setting aside the exparte judgment and order dated 17th February, 2007 and for restoration of the said case. As there was delay, an application came to be preferred in the said matter for condonation of delay. The said application came to be rejected by the Court by order dated 16th February, 2009, hence, this writ petition. 4. The matter was disposed of on 17th February, 2007, however, the application came to be filed only on 6th September, 2007. The case of the petitioner is that he learnt about the order passed in W.C. (NF) No.10 of 2002 by notice dated 7th June, 2007 issued by the respondent. It is noticed that petitioner has not even disclosed date of receiving the notice dated 7th June, 2007. However, postal acknowledgment Exhibit-U-8 shows that he received the notice on 8th June, 2007. Despite the notice being received on 8th June, 2007, the application for certified copy was made on 30th June, 2007. Thereafter, certified copy was received on 17th July, 2007. However, application came to be filed on 6th September, 2007. No 3 wp-4707-09 cogent or plausible explanation has been given for the delay caused in filing the application. 5. The case of the petitioner is that his advocate Mr. S.M. Deshpande did not return the relevant papers, therefore, he contacted another counsel and after taking his advice, he filed the said application. However, he has not brought forward any material to show that he had indeed contacted the said advocate and that the said advocate refused to return the relevant papers. In the absence of any material on record, the contention of the petitioner that delay was caused because the then advocate had not returned the case papers, cannot be accepted. 6. The material on record in fact shows that Mr. S.M.Deshpande advocate had moved pursis vide Exhibit-C-9 withdrawing his Vakalatnama on the ground that the applicant therein i.e. the present petitioner was not contacting him and giving instructions. Along with the pursis, said advocate also filed letter dated 31st December 2006 issued to the applicant directing him to attend the Court and give instructions. On perusal of this letter, it is difficult to accept the contention of the petitioner that his advocate was not intimating the progress of the W.C.(NF) No.10 of 2002. 7. The learned advocate for the petitioner submitted that in fact, the respondent was not workman within the meaning of Section 2(s) of 4 wp-4707-09 the Industrial Disputes Act, 1947, hence, respondent no.1 is not entitled to claim compensation. It is to be noted that such defence was not raised in the written statement filed in W.C.(NF) No.10 of 2002. However, in the present case, we are not concerned with the issue as to whether the respondent no.1 is a workman or not and the issue involved in this matter is only whether the application for condonation of delay has been rightly rejected by the order dated 16th February, 2009. 8. First of all, there is no explanation for the delay between 9th June, 2007 to 29th June, 2007, however that would not be much material but what is more material is that the certified copy was received on 17th July, 2007, however, the application for condonation of delay was filed only on 6th September, 2007. The delay could have been condoned if some cogent and plausible reason had been given for the delay caused. However, as observed earlier, the explanation of the petitioner that he could not file the application in time as his advocate did not return the papers, does not appear genuine. Moreover, it is seen that the age of the respondent is about 74 years. He has sustained 100% disability in the accident which occurred on 29th July, 2001. He filed application for compensation on 9th January, 2002 and since then he is contesting the matter and inspite of the judgment in his favour and obtaining the recovery 5 wp-4707-09 certificate, he is not getting the amount. It may be stated here that the amount of compensation and interest thereon has already been deposited by the petitioner in the trial Court. 9. In my view, considering the facts and circumstances of this case, the order dated 16th February, 2009, does not call for any interference. Writ petition is rejected. [SMT.V.K.TAHILRAMANI, J.]