MANAGEMENT OF SOUTHERN RAILWAY TONDIARPET MARSHALLING YARD STAFF CO-OPERATIVE CANTEEN LIMITED, MADRAS-19 Vs. WORKMEN OF SOUTHERN RAILWAY TONDIARPET MARSHALLING YARD STAFF CO-OPERATIVE CANTEEN LIMITED, MADRAS-19

JUDGEMENT

(1.) The present writ appeal is against the order passed by the learned single Judge refusing to condone the delay in making a restoration application as the writ petition filed by the petitioner was dismissed in default. The application is belated by 271 days. This was a writ petition where the award in favour of the 17 workmen was challenged. By that award, it was directed that those workmen should be paid in the same manner as the other permanent employees were being paid. The writ petition challenging the award was filed somewhere in 1992 and it was dismissed somewhere in the year 1999. For those seven years, the writ petition remained pending till it was dismissed on 28.6.1999. After that, it is only in the month of April, 2000 that the application for restoration and the present application for condonation of delay in making the application for restoration came to be filed. Obviously, the reasons for condonation of delay as also the reasons for restoration of the writ petition are practically one and the same. What is stated is that the learned counsel who was appearing on behalf of the petitioners had become old and had some family problems and therefore had to stop attending the Court.

(2.) An affidavit has also been filed by one Thiru. Venugopal. In his affidavit, he says that due to his old age and a very serious domestic problem, he was not attending Court for the last more than two years and therefore he missed the matter in the list when it was listed and he could not also entrust the matter to any other counsel as the matter missed his notice. In such circumstances only the matter came to be dismissed. Before us however, and before the learned single Judge also it was argued that it was due to the ill health that Mr. Venugopal did not attend the matter. The plea is obviously contradictory. We are constrained to observe that if the learned counsel had stopped attending the office, it was upto him to have informed the party and at least to return the brief, if not, to arrange for another counsel to argue. The party also has remained totally inactive for a long period of more than seven years. In such circumstances, we do not think that the learned single Judge was in any way wrong in refusing to condone the delay of 271 days in making the restoration application.

(3.) Two decisions were relied upon by the learned counsel in support of this appeal. One of them is N. Balakrishnan v. M. Krishnamurthy, . We do not find any similarity. This was certainly not a case where the party as well as the advocate remained inactive throughout seven years. That apart, this was a case where the trial Court had condoned the delay whereas the High Court had, in its revisional jurisdiction interfered, which was not approved by the Apex Court. The case therefore turns more on the jurisdictional error committed by the High Court than on the merits. The other case relied upon by the learned counsel is Rafiq and another v. Munshilal and another, . This was a case where the appeal was dismissed in default owing to the appellant's counsel and that dismissal was set aside as the Supreme Court took the view that the lawyer's mistake should not prejudice the party. Our attention was more particularly invited on the observations made in Paragraph 3, where it is observed: