A litigant cannot escape responsibility for proceedings failures by blaming their advocate; vigilance regarding one's rights is essential.

JUDGMENT :

M. K. THAKKER , J.

1. Rule, returnable forthwith. Learned advocate Ms. Vadodariya waives service of notice of Rule.

2. Since the issue raised in the these petitions are similar, they are being decided by a common judgment. The facts of Special Civil Application No.2766 of 2023 are taken for the purpose of adjudication.

3. This petition is filed challenging the order dated 24.08.2022 passed by the learned Labour Court in Misc. Application No.47 of 2021 as well as the award dated 19.07.2019 passed by the learned Reference Court in Reference (LCB) No.126 of 2016.

4 It is the case of the petitioner that respondent No.2 was working as a Peon with the petitioner for different periods in the respective petitions, namely, for 08 years in Special Civil Application No.2844 of 2023, for 04 years and 07 months in Special Civil Application No.2815 of 2023, and for 02 years in another case, and their services came to be terminated on 17.05.2016. Aggrieved by the said termination, respondent No.2 raised an industrial dispute before the learned Labour Court seeking reinstatement and quashment of the termination order, which came to be registered as Reference (LCB) No.126 of 2016. Though notice was issued to the petitioner and a copy of the statement of claim was also served, the petitioner failed to remain present before the Labour Court, and consequently, the right to file reply and to adduce evidence was closed. Thereafter, by an ex parte award dated 19.07.2019, the learned Labour Court directed the petitioner to reinstate respondent No.2 with 30% back wages. The petitioner thereafter filed Misc. Application No.47 of 2021 on 05.11.2020 under Rule 26A of the Gujarat Industrial Disputes Rules, 1996, inter alia praying for setting aside of the ex parte award dated 19.07.2019 and for restoration of the Reference to its original file. The learned Labour Court, however, after considering the explanation offered by the petitioner, dismissed the said application, which is the subject matter of challenge before this Court.

5. Heard the learned advocate Mr.Buch for the petitioner and the learned advocate Mr.Vadodariya for the respondent.

6. Learned advocate Mr. Buch submits that the learned Labour Court has committed an error in allowing the Reference in the absence of any order of appointment or attendance sheet on record. It is submitted that respondent No.2 was engaged only as a daily wager through outsourcing and was never appointed by following the due process of recruitment. Having thus entered through the backdoor, the respondent cannot claim reinstatement nor seek the benefit of compliance under Section 25F of the I.D. Act. Learned advocate Mr. Buch further submits that though the petitioner had engaged an advocate, the said advocate failed to appear before the Labour Court, and therefore, the impugned award came to be passed ex parte. On being informed of the said fact, the petitioner passed a resolution for change of advocate, and on that ground also, an opportunity deserves to be granted to the petitioner to participate in the Reference proceedings. Learned advocate Mr. Buch also submits that while issuing notice, this Court had directed the petitioner to deposit costs of Rs.15,000/-, which has already been deposited and is lying with the Registry, and therefore, even on condition of disbursement of the said amount in favour of respondent No.2, the impugned orders deserve to be set aside.

7. Per contra, learned advocate Ms. Vadodariya submits that the learned Labour Court has specifically recorded in its award that despite service of notices and receipt of the statement of claim, the petitioner failed to appear, and therefore, the stages for filing the written statement, c