1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICATION NO. 1028 OF 2009 AND MCA (ST) NO. 11487 OF 2009 IN CIVIL APPLICATION NO. 6358 OF 2006 IN LETTERS PATENT APPEAL (ST) NO. 16485 OF 2005 (US Vitamin Limited .v. Hon’ble Presiding Officer and another) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri A.P. Wachasunder, Advocate for the applicant. Shri D.P. Thakare, AGP for the respondent No.1. CORAM : A.H. JOSHI AND PRASANNA B. VARALE, JJ. 06TH JANUARY, 2010. (1) Heard learned Advocate Shri A.P. Wachasunder for the applicant. Considering that the application for restoration is delayed by over two years, this Court has called upon the learned Advocate to advance submissions as to merits of LPA, so that if some merit is found in LPA this Court would consider the Civil Applications for condonation of delay and for restoration. (2) Heard. Perused the record enclosed to LPA. (3) It is seen that the LPA itself was delayed by 18 days and was dismissed in default. (4) Learned Advocate takes serious exception to word “discretion” used in the judgment of learned Single Judge impugned in the appeal. (5) Learned Advocate urges that the application for restoration filed by respondent before Labour Court was analogous to one under Order 9 Rule 8 of the Code of Civil Procedure and the exercise of power is “statutory” and not 2 “discretionary.” (6) Learned Advocate agrees that “discretion” on the part of a Court or Tribunal is an inbuilt duty in the process of exercise of powers and discharge of judicial functions. (7) On the preposition noted in foregoing para, learned Advocate being right, he is wrong in basing his challenge in LPA solely by criticizing impugned order. On facts and merits, it is not denied that on the day of rejection of reference, present respondent did not have satisfactory explanation. (8) The LPA is therefore meritless. We are therefore not satisfied that the applicant has a case for vexing the respondent by notice on both these applications. (9) Therefore, Civil Application No.1028 of 2009 and MCA (St) No. 11487 of 2009 are dismissed. JUDGE JUDGE *rrg.