OA Dismissed for Non-Appearance: Restoration Application Steps

Dismissed in default or decided in your absence: check which one you have

Rule 15 of the CAT (Procedure) Rules gives the Tribunal two choices when the applicant does not appear on the hearing date. It may dismiss the application for default, or it may go ahead, hear the respondents, and decide the OA on merits. The remedy depends on which of these happened, so download the order from the CAT website before doing anything else.

A default dismissal is usually a few lines: 'None for the applicant. No one has appeared on the last three dates either. The OA is dismissed for non-prosecution.' Sometimes it adds 'in default'. This kind of order can be set aside under Rule 15(2) if you show sufficient cause for the absence. The OA then goes back to the board exactly where it was.

An order that discusses the pleadings, refers to the department's reply, and reaches a conclusion on your claim is a decision on merits, even if nobody spoke for you. Restoration is not the route for that. You would need a review application under Section 22(3)(f) on the ground that you were not heard, filed within 30 days, or a writ petition in the High Court. Our page on review of a Tribunal order explains the review route and its tight deadline.

Why OAs get dismissed for non-appearance

In our experience the cause is rarely the applicant's indifference. A clerk notes the next date wrongly in the diary. The cause list shows the matter under an old item number, or under the name of the first respondent instead of the applicant. Counsel is held up in another court and the proxy does not reach in time. In a virtual hearing, the link opens late, the applicant is in the waiting room when the item is called, and the Bench moves on.

Some dismissals come after a pattern. If no one has appeared on three or four consecutive dates, or the applicant has not taken steps such as filing a rejoinder or serving notice, the Bench may treat the case as abandoned. Restoration is harder then, because the Tribunal will ask not only about the last date but about the whole period of silence.

Party-in-person applicants are particularly exposed. A retired employee who filed his own OA may not check the cause list every evening and may not know that matters can be advanced or shifted to a different court room. If you are running your case yourself, read our page on arguing your own OA for the routine checks that prevent this.

Restoration application steps, in the order to do them

This sequence works at most benches whether you file in person or through e-filing.

1. Download the dismissal order and the order sheet

   Get the order of the dismissal date and at least the two or three previous orders. They show how many times the matter was called, whether earlier dates were also missed, and what the Bench was told.

2. Find out what happened on that date

   Ask your lawyer for a short written note, or reconstruct it yourself: where you were, why you could not appear, when you learnt of the dismissal. Collect proof for each statement while it is still easy to get.

3. Draft the restoration application

   Title it as an application for recall of the order dated so-and-so and restoration of the OA, filed as a miscellaneous application in the same OA number. State the dates, the reason for absence, the date of knowledge and the prayer. Ask for revival of any interim order.

4. Add a delay application if needed

   If more than about a month has passed since the dismissal, file a separate application to condone the delay, explaining the whole period day by day where possible.

5. Verify, sign and file

   Attach an affidavit supporting the facts, a fresh vakalatnama if counsel has changed, and copies of the proof. Serve a copy on the department's counsel, who appeared on the dismissal date.

6. Mention or get it listed

   Where an interim order has fallen and you face immediate harm, such as a recovery restarting or relieving orders on a transfer, ask the registry or the Bench for early listing.

The department's counsel often does not oppose a first restoration filed promptly with a genuine reason. Opposition is more likely where the dismissal followed several missed dates, or where the department has acted on the dismissal, for instance by filling a post.

Restoration of dismissed OA: what the application should actually say

An application seeking restoration of a dismissed OA does not need to argue the merits of your claim. Keep it to three or four pages. The first paragraph identifies the OA, the date of dismissal and what the order says. The next few paragraphs give the history briefly: when the OA was filed, whether notice was issued, whether an interim order was passed, and what stage the pleadings had reached. If notice had already gone to the department, mention it; our guide on what notice at admission means explains why that stage matters to the Bench.

Then comes the heart of the application: the reason for absence on that particular date, in plain sentences, with each fact tied to an annexure. Do not pile up five reasons when one true reason will do. Benches are suspicious of an application that says the applicant was ill, counsel was in another court and the cause list was wrong, all at once.

After that, state the date of knowledge and the steps taken since. Close with a short prayer: recall of the order dated so-and-so, restoration of the OA to its original number and stage, revival of the interim order, and any other order the Bench thinks fit. Keep the tone respectful. An application that blames the registry or the Bench for listing the matter is unlikely to help, even if the listing really was confusing.

The supporting affidavit should be sworn by the person who knows the facts. Where the default was the clerk's, the clerk's own short affidavit is worth more than counsel saying what the clerk told him. Where you were in hospital, your affidavit with the discharge summary is enough. File it as a miscellaneous application in the same OA so it is linked to the main case on the website.

How fast is fast enough?

The published text of Rule 15(2) speaks of the applicant appearing afterwards and satisfying the Tribunal about the absence. It does not, in the version commonly circulated, fix a number of days. Benches nevertheless expect promptness, and many draw on the 30-day period that applies to restoration of suits under the Limitation Act. Some registries will not number a restoration application filed after a month unless a delay application is attached. Ask the registry of your bench how it treats late applications, and assume the stricter view.

A restoration application filed within a week, with proof, is seldom refused. One filed after three months needs a full account of those three months. One filed after a year or more faces the argument that you abandoned the case. The CAT is not tied to the Civil Procedure Code, but it applies the same idea of sufficient cause and asks whether you acted with reasonable diligence once you knew. Our guide on delay explanations that Benches accept covers the kind of reasons that hold up.

Reasons for absence on the hearing date that usually satisfy the Bench

Illness of the applicant or a close family member, supported by a hospital or doctor's certificate covering the date. Death in the family. Travel on official duty, especially for employees in the north east, island territories or field units, with a movement order or tour programme. A mistake in the cause list, such as a wrong name or number, shown by a printout. A failed virtual link, shown by screenshots, an email to the court master, or a message sent the same morning.

A lawyer's mistake is also accepted in many cases, because the Supreme Court has said more than once that a litigant should not suffer for the default of the advocate. Rafiq v. Munshilal (1981) is the decision usually cited. The Bench will still want an affidavit from counsel or the clerk explaining what went wrong, and the plea wears thin if the same counsel has missed several dates.

Reasons that rarely work on their own are 'the applicant was busy with official work', 'counsel was engaged in another court' without detail, and 'the applicant was not aware of the date' when the date was announced in open court and recorded in the order sheet. These are not impossible, but they need support.

Advocate B.K. Singh's first tip: account for the date of knowledge, not just the date of absence

Advocate B.K. Singh's first tip is that most restoration applications explain why nobody appeared and then go silent on what happened next. The Bench is equally interested in when you came to know of the dismissal and what you did after that. If you were in hospital on 12 March, that explains 12 March. It does not explain why the application was filed on 30 June.

So write the application as a short timeline: hearing date, reason for absence, the date and manner in which you learnt of the dismissal (a phone call from counsel, a case status check, a letter from the department relying on the dismissal), and each step after that. If you learnt of it only when the department wrote to you, attach that letter. A clear date of knowledge often turns a three-month gap into a two-week gap in the Bench's eyes.

What a restoration usually takes: time and cost

Getting the interim order back

When an OA is dismissed, any interim order made in it ends with it. If the Tribunal had stayed a recovery from salary, a transfer, a reversion or the operation of a seniority list, the department is free to act the moment it learns of the dismissal. Some offices act within days.

The restoration application should therefore have a separate prayer asking that the interim order dated so-and-so be revived with effect from the date of restoration, and, where the department has already acted, that the position be restored. If the harm is immediate, say so in the first paragraph and ask for urgent listing. The Bench cannot revive the stay retrospectively in every case, but it can protect you from the date it restores the OA.

Our page on interim relief under Section 24 explains what the Tribunal looks at when it decides whether a stay should run again.

Papers to attach to the restoration application

• Copy of the dismissal order and the two or three previous orders from the order sheet
• Affidavit of the applicant setting out the facts and the date of knowledge
• Affidavit of counsel or the clerk where the mistake was on the lawyer's side
• Medical certificate, discharge summary or death certificate, as the case may be
• Movement order, tour programme or travel ticket for official absence
• Printout of the cause list showing a wrong name or number, if that was the problem
• Screenshots, emails or messages showing a virtual link failure
• Any departmental letter or pay slip through which you learnt of the dismissal
• Copy of the interim order you want revived
• Fresh vakalatnama if you have changed counsel

Which bench and which file number

The restoration application goes to the same bench that dismissed the OA, in the same OA number. It is not a new case. If you have been transferred since filing, for instance from Kolkata to Guwahati, the OA still belongs to the Kolkata Bench and the restoration must be filed there. You can then ask, separately, for a transfer of the case to another bench under Section 25 if travel is a real difficulty.

Most benches now accept restoration applications through the CAT e-filing portal, but practice on numbering and listing differs. The registry may give it an MA number and list it before the same Bench or before whichever Bench is taking that category of matters. Note the MA number when it is allotted; it is easy to lose track of an MA when the main OA shows 'disposed' on the website.

Advocate B.K. Singh's second tip: set up your own check of the cause list

Advocate B.K. Singh's second tip is to stop relying on any one person for dates once the OA is restored. Ask your lawyer to send you the next date in writing after every hearing, and check the bench's cause list yourself the evening before. The CAT website lets you search by OA number and by party name; save both searches on your phone.

A second dismissal for default is much harder to undo than the first. The Bench will remember that it restored the case once, and a fresh reason for absence will be read with less sympathy. Most dismissals we see could have been avoided with a two-minute check. For hearings held by video, read our guide on joining a virtual hearing before a CAT bench and log in well before the item is likely to be reached.

If the department did not appear instead

The situation is reversed when the applicant appears and the department does not. Rule 16 allows the Tribunal to adjourn or to hear and decide the OA ex parte. If an order is passed in the department's absence, the department may apply to set it aside, and it will have to show sufficient cause just as you would. Employees sometimes worry that an ex parte order in their favour will automatically be undone. It will not; the department has to make out a case, and you can oppose it.

If the department keeps failing to file its reply or appear, the remedy is different. You can ask for its right to file a reply to be closed and for the OA to be heard. Our guide on adjournments and costs in Tribunal cases explains how Benches deal with repeated non-appearance by either side.

When restoration is refused

Benches refuse restoration mainly in three situations: the delay is long and unexplained, the applicant has a history of non-appearance, or the reason given is shown to be untrue. In the last case, the refusal may come with costs, so never invent an illness or a hospital visit. Departments can check, and sometimes do.

If restoration is refused, the order refusing it is itself a Tribunal order that can be challenged by a writ in the High Court with jurisdiction over that bench. The High Court will ask whether the Tribunal exercised its discretion fairly, not whether it would have restored the case itself. Our page on writ petitions against Tribunal orders covers the route. A fresh OA on the same claim is generally not a way around the refusal: it faces the earlier dismissal and, usually, limitation.

Retirees, candidates and employees posted far away

For a pensioner, restoration of a dismissed OA can decide whether old arrears survive at all. Retirees are also more likely to run their own cases and to live far from the bench, sometimes in a different state from where they last served. A dismissal for default can hit a pension case hard, because limitation on old arrears keeps running in the background. If you are a retiree and the OA was about pension or gratuity, file the restoration without waiting to find a new lawyer; you can engage one for the hearing.

Candidates whose OA concerns a selection or an appointment face a different pressure. The selection panel may be about to expire, or posts may be filled while the OA is out of the list. Ask the Bench, in the restoration application itself, for a direction that one post be kept unfilled or that any appointment be subject to the result of the OA.

Employees in field units, in naval dockyard units, or in posts in Ladakh, the Andamans or the north east often learn of a dismissal late because post and connectivity are slow. Say this plainly, with the place of posting and the dates, and attach the movement order. Benches understand that a storekeeper at a remote depot does not check the cause list every evening.

What to do this week

Download the dismissal order and the order sheet today. Check whether it is a default dismissal or a decision on merits. Write down the hearing date, the reason for absence, and the date you learnt of the dismissal, with a document for each. If an interim order has fallen, note what the department has done since.

Then get the restoration application filed in the same OA as a miscellaneous application, filed and listed like any other MA, with an affidavit and the supporting papers. If more than a month has gone, add a delay application. If a stay has fallen and harm is immediate, ask for early listing.

If you want the papers checked and the restoration filed without further delay, or want updates on how benches are treating such applications, contact Advocate B.K. Singh.