IMPORTANT POINT
The duty of the advocate to attend to the case and the compassionate considerations to be exercised by the tribunal in such matters.

JUDGMENT :

Jitendra Jain, J.

1. Rule. Rule made returnable forthwith. By consent of the parties heard finally.

2. By this petition under Article 227 of the Constitution of India, the Petitioner seeks to challenge the order dated 30th November 2023, passed by the Maharashtra Administrative Tribunal (for short “Tribunal”), whereby the Petitioner’s Miscellaneous Application Nos.617 of 2023 and 616 of 2023 seeking condonation of delay in filing the restoration application to restore dismissal of Original Application (O.A.) No.1039 of 2016 was dismissed.

3. Brief facts are as under:-

(i) On 16th December 2015, the Respondents issued an advertisement for filling up various vacancies in the Police Department. Pursuant to the said advertisement, the Petitioner applied for the post of Assistant Police Sub-Inspector (Radio Mechanic) as well as for the post of Police Constable (Wireless Operator). The Petitioner cleared his written examination but his height was measured as 162.5 cm., which was below the prescribed height of 163 cm. and, therefore, his application came to be rejected. The Petitioner, thereafter, made a representation but did not succeed and hence on 21st August 2016, he filed the O.A. No. 1039 of 2016 with the Tribunal. The said application was filed through an Advocate.

(ii) On 7th September 2017, the said O.A. was admitted ex-parte by the Tribunal and final hearing was directed to come up in due course. The pleadings were completed by the parties.

(iii) On 25th June 2021, the aforesaid O.A. was listed for final hearing but since the Petitioner and/or his Advocate were not present, the Tribunal came to a conclusion that the Petitioner and his Advocate seems not to be interested in the matter and, therefore, the O.A. was dismissed in default.

(iv) On 16th September 2023, the Petitioner filed a Miscellaneous Application No.617 of 2023 for restoration of the O.A. which was dismissed for default. Since the filing of the said restoration application was delayed by a period of two years and two months, the Petitioner also filed a Miscellaneous Application No.616 of 2019 seeking condonation of delay in filing the restoration application. In the said applications, the Petitioner inter alia stated that he was under the impression that the Advocate would attend the hearing and because of his reliance on the Advocate who did not attend the matter, the O.A. came to be dismissed.

(v) On 30th November 2023, the Tribunal disposed of both the Miscellaneous Application Nos.616 of 2023 and 617 of 2023. The Tribunal dismissed the Miscellaneous Applications since they were not satisfied with the explanation and the ground to condone the delay. It is on this backdrop that the present petition is filed.

4. The Petitioner submitted that he, as a bonafide litigant depended upon the Advocate through whom the O.A. was filed and was under a bonafide belief that the Advocate would attend the hearing. The Petitioner submitted that on account of this belief, he did not attend the hearing on 25th June 2021 nor his Advocate informed about the same. Later on, when he realised that his O.A. was dismissed on account of non-appearance by his Advocate, he decided to change his Advocate and filed these applications for restoration and condonation. The Petitioner further submitted that he has good case on merits and he should not be non-suited on account of the aforesaid reason. The Petitioner, therefore, prayed for quashing of the impugned order and prayed for restoration of the O.A. to be decided on the merits by the Tribunal.

5. Per contra, the Respondent supported the order of the Tribunal and submitted that the Petitioner has not been diligent in pursuing his matter and, therefore, no cause is shown for condoning the delay and, therefore, prayed for dismissal of the Petition.

6. We have heard learned counsel for the Petitioner and Respondent and with their assistance have perused the documents annexed to the present petition.

7. The Tribunal in paragraph 6 of the im