K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.215 OF 2007 IN LETTERS PATENT APPEAL (ST) NO.13189 OF 2007 IN WRIT PETITION NO.3503 OF 1997 Bhagwatiprasad C.Pathak )..Applicant Vs. R.D.E.Co-op. Stores & Anr. )..Respondents ---- Mr.A.M.Joshi for the applicant. ---- Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 16.4.2009. PC 1. This is an application filed for condonation of delay. The delay is about 50 days. The cause shown does not appear to be sufficient. Therefore, in order to find out whether the appellant has a prima facie case, we heard the learned Advocate for the appellant on the merits of the appeal. We find that the employer was permitted by the Labour Court to lead evidence. Employer led evidence to show that the appellant was absent from duty for a very long time. Defence of the appellant was that he did not apply for leave, he was not on leave and that he wanted to attend the duty but he was prevented from attending the duty. He did not lead any evidence in : 2 : support of his case. The Labour Court accepted the case of the employer and the single Judge has confirmed that order. Learned Advocate for the applicant took us throug the oral deposition of the witness of the employer to show that during some months the muster shows that the applicant was on leave. In our opinion, this document i.e. the muster roll and the deposition of the witness do not support the case of the appellant. On the contrary they show that the appellant remained absent and was shown on leave for some time. Had it been the defence of the appellant that he had applied for leave and his leave was sanctioned then the appellant was right in relying on the muster roll and the cross examination. Defence of the appellant however was that he was not absent but he was not permitted to perform his duty. This could have been proved by the applicant only by entering the witness box and leading evidence. In the absence of any contrary evidence, in our opinion, on the basis of the evidence led by employer, no exception can be taken to the findings recorded by the Courts below. Therefore, we find that there is no substance in the appeal also sufficient cause is not shown. Civil Application disposed of. (D.K.Deshmukh,J) (D.K.Deshmukh,J) (D.K.Deshmukh,J) : 3 : (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)