- (1.) INSTANT misc. restoration application has been filed for recalling and restoration of the Special Appeal -1299/2012 which came to be dismissed for non prosecution vide order dt. 21.5.2013 preferred with delay of 162 days for which application has been filed u/s. 5 of the Limitation Act seeking condonation of delay. Ordinarily, the lawyer appearing for the respondent do not oppose the application whenever comes for restoration but in the instant case, reply has been filed opposing the application for restoration by the respondent.
(2.) APART from what has been contended in the application for restoration, on the earlier occasion also no one appeared on behalf of appellant despite opportunity being afforded and care has not been taken at the instance of the lawyer, there appears no justification and accordingly the appeal was dismissed for non prosecution and as a consequence whereof, the application u/s. 5 of the Limitation Act was dismissed vide order dt. 21.5.2013 but for our satisfaction we request the counsel to make submission on merits as well and we find that the appellant workmen as alleged was engaged on hourly basis on 18.7.1985 and worked upto May 1986 and after eight years, a writ petition came to be preferred before the Ld. Single Judge on 25.2.1994 and after the matter being heard, the Ld. Single Judge was not satisfied with inordinate delay which caused in availing remedy by filing writ petition u/Art. 226 of the Constitution and on account of inordinate delay in approaching the court after assigning due reasons the writ petition came to be dismissed vide order dt. 29.2.2012. We have heard the counsel and we are also not persuaded with the submission made and we do find that there was inordinate delay in availing extraordinary remedy, however, the remedy under the Industrial Disputes Act, 1947 was available with the appellant and indisputably that was not availed by him and looking to the fact that he worked hardly for a period of 11 months from 1985 to 1986 on hourly basis and no reasonable justification came forward in availing extraordinary jurisdiction of this Court by filing the writ petition on 25.2.1994 we are satisfied that it does not deserve any indulgence considering even on merits as consequence whereof there appears no justification to restore the special appeal. Consequently, the application for restoration stands dismissed.;