BABU LAL Vs. GOVT. OF NCT DELHI

JUDGEMENT

(1.) THE applicants herein were engaged as casual labourer in Public Grievance Commission w.e.f. 29.07.1998, 18.6.2001 and 12.04.2001. They filed Original Application No. 3454/2001 before this Tribunal seeking issuance of direction to the Commission to confer temporary status upon them. Besides the applicants, there were three other casual labourers, namely, Kendrapal, Arun Saxena and Jasbir who had joined the said OA as applicants. Having taken a view that except Sh. Arun Saxena, i.e. applicant No. 2, no other applicants in the OA had completed the requisite period of 206 days as casual labourer, the Tribunal dismissed the OA in respect of all the applicants except Shri Arun Kumar or Arun Saxena, i.e. applicant no. 2. The order of the Tribunal was challenged by Jasbir and others before Hon'ble Delhi High Court. Having taken a view that in calculating the casual service rendered by the petitioners before it, the Commission ought to have taken into account the weekly off and holidays as working days, Hon'ble Delhi High Court allowed the Writ Petition and declared the applicants herein entitled to conferment of temporary status. Para 6 to 9 of the judgment read as under: -

(2.) ON the other hand, with reference to the stand taken by them in the counter reply, learned counsel for respondents submitted that the view taken by Hon'ble Delhi High Court was that the weekly off and national holidays should also have been taken into account while calculating total number of days during which the applicants worked as casual labourer and there was no direction issued to the respondents to give temporary status to the applicants with retrospective effect. She further submitted that for a long period of four years, the applicants have been out of service and a person cannot be treated as CLTS for the period during which he did not even perform the casual service. The respondents have also tried to explain that since Sh. Arun Kumar Saxena had been granted temporary status w.e.f. 28.12.2000, he was placed at serial no. 1 in the seniority list and Mr. Jasbir who joined as casual labourer w.e.f. 28.7.1998 has been placed at serial no. 2 of the seniority list. Although Mr. Jasbir was also conferred temporary status w.e.f. 28.09.2009, but he has not joined the applicants in the present OA, because being at serial no. 2 in the seniority list of casual labourers, he could be regularized along with Mr. Arun Kumar. In fact, from the tenor of the OA, it appears that the grievance of the applicants is not with reference to the date of conferment of temporary status, but the same is against regularization of S/Shri Arun Kumar and Jasbir.

(3.) THE Tribunal has committed a gross error law in directing the payment. The claim is barred by constructive res judicata under Section 11. Explanation IV, CPC which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not set and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2 Rule 2, CPC prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable.