Judgment Ajay Rastogi, J.-At Judgment joint request and consent of the parties, this petition was heard finally at admission stage. 2. Instant petition has been filed against order dated 20.02.2004 (Annexure-6) passed by Prescribed Authority under Rajasthan Shops and Commercial Establishments Act, 1958, (“the Act”), whereby termination of Respondent No. 1 made effective from 13.03.2001 has been set aside and petitioner has been directed to reinstate him with arrears of salary from the date of termination amounting to Rs. 1,75,000/-within 30 days from the date of order. 3. Facts in brief , are that Respondent No. 1 was appointed as Manager in the establishment of petitioner company and after rendered 15 years, services, his services were terminated w.e.f. 13.03.2001 - against which Respondent No. 1 filed application before Prescribed Authority under the Act, wherein he has specifically come out with a case that he was appointed as a Manager in their establishment and while terminating his services, petitioner company violated provisions of Section 28-A of the Act, as a consequence whereof , he may be reinstated in service with all consequential benefits. The same were the facts asserted in his affidavit which he submitted in support of application under the Act. 4. In fact, ex parte proceedings were initiated against petitioner company by closure of their right to file reply and ex parte proceedings were initiated and finally the order was passed on 20.04.2004 setting aside impugned termination of Respondent No. 1 with consequential benefits including payment of arrears of salary, referred to above. Hence, this petition, 5. Counsel for petitioner contends that in fact Respondent No. 1 himself has recorded in his own application moved under the Act that he was initially appointed as Manager in the establishment of petitioner company and under Section 2(6) of the Act, those who control managerial affairs of establishment, are considered to be an employer; as such he could not be held to be employee as provided under Section 2(5) of the Act. Counsel further urged that it was nowhere asserted by Respondent No. 1 either in his application or in affidavit that mere nomenclature of “Manager” has been given to him but still he was discharging his duties of an employee as contemplated in Section 2(5) of the Act; as such premise on which Prescribed Authority has proceeded to treat Respondent No. 1 as employee in terms of the Act is totally perverse and such finding recorded by the Authority is not legally sustainable and deserves to be set aside. 6. Counsel further contends that after notices were served in Fabruary, 2001, petitioner company engaged Shri Harshvardan Sharma as their Counsel; but any how after first appearance, he did not appear on three different occasions; as such another Counsel Shri Prem Raj was engaged who filed Vakalatnama on 17.07.2001 and he too took adjournment in the matter but never sent intimation to petitioner Company about next date of hearing fixed and he too stopped appearing in the matter of which there was no intimation at any stage to the petitioner; in such circumstances, their non-appearance was bona fide as petitioner company entrusted their matter to look after by their Counsel. 7. Counsel for petitioner after perusal of order sheet on record, fairly conceded that fair opportunity was afforded to petitioner company but since there was no intimation by their Counsel about proceedings, as such they failed to submit their reply and record their evidence in counter to the claim of Respondent No. 1 before the Authority and any how, proceedings stood ex parte and impugned order was passed ex parte but the petitioner has bond fide and sufficient cause for non-appearance, which in fact has caused gross prejudice to him. 8. Counsel also contends that even the application of Respondent No. 1 was not maintainable under the Act as it is not a case of termination of service but Respondent No. 1, himself , has abandoned the job by submitting resignation and took his dues from the company and thereafter raised grievance by submitting application under the Act. 9. Respondent No. 1 has filed reply to writ petition and supported impugned order passed by the Authority. 9. Respondent No. 1 has filed reply to writ petition and supported impugned order passed by the Authority. Counsel for Respondent No. 1 contends that ample opportunity was afforded to petitioner company and since they failed to appear despite service and no written statement was filed to the application; as such no error was committed by the Authority in proceeding ex parte against the company and finally while passing impugned order assailed herein. 10. Counsel for Respondent No. 1 has further urged that merely because he was appointed as Manager that will not oust him from the meaning of term “employee” under Section 2(5) of the Act. In support of his contentions, reliance has been placed on decision of this Court in M/s Tourist Guide Service vs. B.D. Harsha, 1989 (2) RLR 1 and further urged that there was no requirement for Respondent No. 1 to submit nature of duties discharged while working as Manager unless it was disputed by either side and in the absence of which, no error was committed by the Authority under the Act in allowing application and in holding Respondent No. 1 as employee under Section 2(5) of the Act. 11. I have considered rival contentions of Counsel for the parties and with their assistance examined material on record. This fact remains undisputed that after the notice was served upon petitioner on first occasion on 28.04.2001, Shri Harshvardan Advocate appeared on behalf of petitioner company and took time to file reply and thereafter another Advocate Shri Prem Raj appeared on 07.07.2001 and sought adjournment to file reply which was allowed on costs of Rs. 50/-. But either of Advocates did not file any reply and continued to seek adjournments. I find from record that time was granted to petitioner company on number of occasions. It has come on record that there was no intimation to them by their Counsel and the fact remained that written statement could not have been filed by petitioner company. Even once their right to file written statement was closed, application was filed for recalling of the order but Counsel again failed to appear in the matter, as such that too was rejected. 12. However, ultimate fact remained that on account of non-appearance of their Counsel, petitioner company has been penalised for fault of somebody else. Even once their right to file written statement was closed, application was filed for recalling of the order but Counsel again failed to appear in the matter, as such that too was rejected. 12. However, ultimate fact remained that on account of non-appearance of their Counsel, petitioner company has been penalised for fault of somebody else. What is required to be initiated against Counsel is a different matter but it certainly caused prejudice to the right of petitioner for adjudication of the dispute and in instant case, petitioner has failed to submit reply to the application under the Act. In my opinion, in the interest of justice, petitioner is required to be afforded one more opportunity to file written statement and submit its case before the Authority under the Act by defending their action and to justify as to whether it was a case of termination or wilful abandonment of job by tendering resignation. 13. As regards merits of the dispute raised in the application, particularly as to whether the applicant (Respondent No. 1) is an employee within the meaning of Section 2(5) of the Act or not in view of Respondent No. 1s own case that he was initially appointed as Manager in Office of petitioner company, I find from material on record that nothing has been averred by Respondent No. 1 also either in his application or in affidavit submitted in support whereof , about nature of duties discharged by him so as to establish himself to be an employee within the meaning of section 2(5) of the Act, despite his nomenclature of Manager in the establishment. On the contrary, an averment has been raised by Respondent No. 1 for the first time in reply to the objection raised by petitioner in present petition. Therefore, both the parties would be free to submit their respective claim and counter claim before the Authority under the Act for proper adjudication of dispute inter se between them. 14. On the contrary, an averment has been raised by Respondent No. 1 for the first time in reply to the objection raised by petitioner in present petition. Therefore, both the parties would be free to submit their respective claim and counter claim before the Authority under the Act for proper adjudication of dispute inter se between them. 14. Judgment in Tourist Guide Service vs. B.D. Harsha (Supra), was of a case where applicant and so also the establishment both have come out with their claim about nature of duties and the Authority recorded finding of he being employee under the establishment after taking into consideration entire material led in evidence before the Authority; as such while examining material on record, this Court observed that merely because he was Manager in the establishment, that alone will not eliminate him from being employee in terms of Section 2 (5) of the Act. 15. The order was passed by the Authority under the Act on 20.02.2004 and almost two years by now have elapsed and as a result of pendency of petition, Respondent No. 1 was deprived of seeking appointment in pursuance of the order passed by the Authority under the Act, I consider it proper that applicant should also be adequately compensated and in my opinion it will meet ends of justice if one more proper opportunity is provided to petitioner to file written statement and to proceed further in the matter on payment of costs of Rs. 10,000/- 16. Consequently the writ petition is allowed. Order dated 20.02.2004 (Annexure-6) of the respondent authority under the Act is quashed and set aside subject to the directions:- .(1) petitioner will pay costs of Rs. 10,000/-by Bank draft to Respondent No. 1 and also submit its written reply to application of Respondent No. 1 within one month from today; failing which Respondent No. 1 will be free to get order dated 20.02.2004 (Annexure-6) executed in accordance with law. .(2) after compliance of direction No. 1, the Prescribed Authority under the Act shall restore Case No. RSC2/2001 and proceed further by affording opportunity to the parties to lead their evidence and thereafter decide the matter afresh in accordance with law expeditiously but not beyond six months from the date of submission of written statement. Stay Petition No. 1420/2004 stands disposed of . No costs.