JUDGMENT : This is an assigned matter by virtue of order dated 12th January 2021 passed on the administrative side by Hon'ble the Chief Justice, High Court of Jharkhand. 2. Mrs. Darshana Poddar Mishra, the learned Additional Advocate-General-I, appearing for the appellant-State of Jharkhand has prepared a short synopsis, list of dates and notes on arguments. I.A. No. 5405 of 2020 3. This application has been filed for condonation of delay of 398 days in filing the instant Letters Patent Appeal. 4. Mr. Manoj Tandon, the learned counsel, appears for the respondent and objects to the prayer for condonation of delay. 5. In the application under section 5 of the Limitation Act, the appellant has averred as under: “3. That it is humbly stated and submitted that the order passed by Hon'ble Mr. Justice Sanjay Kumar Dwivedi in W.P.(S) No. 5239 of 2013 was received in the office of the Deputy Secretary of Road Construction Department on 24.09.2019. 4. That it is stated and submitted that after the said Order was received in the office of Deputy Secretary of the Road Construction Department, it was forwarded to the Secretary of the Road Construction Department for his perusal on 30.09.2019. 5. That it is humbly stated and submitted that on 16.10.2019, the Secretary of the Road Construction Department sought the legal Opinion from the then Advocate General as to whether Letters Patent Appeal is to be preferred before the Hon'ble Jharkhand High Court against the said order dated 08.08.2019 passed by the Hon'ble Mr. Justice Sanjay Kumar Dwivedi in W.P.(S) No. 5239 of 2013. 6. That it is humbly stated and submitted that on 18.02.2020, the then Additional Advocate General, advised the Secretary of the Road Construction Department, to prefer an Appeal by way of Letters Patent Appeal against the order dated 08.08.2019 passed by the Hon'ble Mr. Justice Sanjay Kumar Dwivedi in W.P.(S) No. 5239 of 2013. 7. That soon after the Holi festival, cases of COVID-19 increased in India and in view of extraordinary situation which is prevalent in the entire Country due to menace of COVID-19 pandemic, the Government of India ordered a nationwide lockdown w.e.f. 25.3.2020. 8. That it is further stated that in the month of June, 2020, when the department was partially (Roster-wise) functioning due to the COVID-19 pandemic, the grounds of appeal was drafted by the concerned department. 9. 8. That it is further stated that in the month of June, 2020, when the department was partially (Roster-wise) functioning due to the COVID-19 pandemic, the grounds of appeal was drafted by the concerned department. 9. That it is further stated that the Secretary of the Road Construction Department has sent the Grounds of Appeal only on 31.08.2020 to the Advocate's Office for drafting of the Letters Patent Appeal. 10. That it is further stated that the file regarding the instant appeal was kept in the Advocate's chamber and due to the nationwide lockdown, the drafting of the instant appeal could not be carried out and as soon as it was possible, immediate steps to file the instant Letters Patent Appeal were taken. 11. That it is stated and submitted that the said delay in filing of the instant memo of appeal was not deliberate and there was no intentional delay on the part of the Appellant in filing the instant Appeal.” 6. Mrs. Darshana Poddar Mishra, the learned Additional Advocate-General-I, relies on the decisions in “Esha Bhattacharjee v. Raghunathpur Nafar Academy” (2013) 12 SCC 649 , “State of U.P v. Harish Chandra” (1996) 9 SCC 309 and “State of Jharkhand v. Bahabiti Marandi” (2019) SCC OnLine Jhar 2614 to submit that a lenient view may be taken in the matter for condoning the delay of 398 days in filing L.P.A No.317 of 2020. 7. In the first place, it needs to be recorded that the appellant made application for obtaining certified copy of the order dated 8th August 2019 after expiry of the period of limitation for filing Letters Patent Appeal and, therefore, in view of the judgment in “Postmaster General v. Living Media India Ltd.” (2012) 3 SCC 563 the appellant cannot have the benefit of its own latches. 8. In “Postmaster General”, the Hon'ble Supreme Court has held as under: “29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 9. The records of the case remained pending for more than four months and it was on 18th February 2020 when an opinion from the learned Additional Advocate-General was received by the Secretary, Road Construction Department to prefer an appeal against the order dated 8th August 2019 passed in W.P.(S) No.5239 of 2013. It is, however, not stated by the applicant that the matter was continuously pursued with the learned Advocate General/Additional Advocate-General. A plea of nationwide lockdown with effect from 25th March 2020 is taken by the appellant and on that ground it is stated that the records of the case which were kept in the advocate's chamber could not be retrieved for preparing the memo of appeal. We think that the aforesaid plea taken by the appellant is not proper in as much as the Courts were open and the records are generally available in the department also. 10. Since the matters of substance should not be shut at the threshold, we would therefore assess the probable injury which may be caused to the appellant if the application under section 5 of the Limitation Act is not granted. 11. The respondent was served Praptra “KA” (charge memo) on the allegation that (i) in the financial year 2006-07, he made payment to the labourers through hand receipt and not through muster roll, and (ii) in the financial year 2006-07, he made payment through hand receipts which did not mention quantity of goods and number of labourers. In his reply dated 8th December 2009, the respondent stated that the work in question was filling of the pot holes and as per direction of the Chief Engineer the entire work was to be completed within 15 days. The inquiry report dated 13th March 2010 proceeded on the premise that filling of the pot holes was not a work of emergent nature and, therefore, the delinquent employee had violated provisions under Bihar Public Works Account Code. However, charge no.(ii) was found not proved. The disciplinary authority awarded punishment of reversion to the initial pay scale. The inquiry report dated 13th March 2010 proceeded on the premise that filling of the pot holes was not a work of emergent nature and, therefore, the delinquent employee had violated provisions under Bihar Public Works Account Code. However, charge no.(ii) was found not proved. The disciplinary authority awarded punishment of reversion to the initial pay scale. 12. Rule 228 of the Bihar Public Works Account Code provides as under: “228. The payment of daily labour through a contractor, instead of by muster roll in the usual way, is objectionable in principle. In a case of great emergency it may sometimes be found impossible to employ labour otherwise than through a contractor. Should it be possible, in such a case, to determine the quantities of work done after its completion or at intervals during its progress, it is expedient to pay the contractor, at suitable rates, on the basis of work actually executed. But if, as in the case of urgent repair of canal breaches, this method of payment is not practicable, it is permissible to pay the contractor on the basis of the numbers of labourers employed, day by day, his own profit or commission being either included in the rates allowed, or paid separately in lump sum or at a percentage rate. When this course is adopted, a report of the numbers of labourers of each class employed day by day should be made by the subordinate in charge of the work daily to the Sub-divisional Officer to enable the latter to keep a check on the expenditure and to deal with the contractor's claim when received. To avoid disputes with the contractors, they should be encouraged to sign the daily reports in token of their acceptance as correct.” Note.- The use of the muster roll or the measurement book (paragraph 230) is not permissible in such cases. 13. The records reveal that there was no complaint about quality of work and the payment was released from the office of Executive Engineer. There was no allegation of misappropriation and charge no.(ii) was not proved. It further appears that the Superintending Engineer is vested with powers under Rules 292 and 293 of the Jharkhand Public Works Department Code to sanction work of emergent nature. There was no allegation of misappropriation and charge no.(ii) was not proved. It further appears that the Superintending Engineer is vested with powers under Rules 292 and 293 of the Jharkhand Public Works Department Code to sanction work of emergent nature. Before the writ Court, the petitioner took a stand that at best his act would be labelled as negligent but in any case it was not a forbidden act. 14. The learned writ Court referred to the judgment in “Inspector Prem Chand v. Govt. of NCT of Delhi and Others” (2007) 4 SCC 566 to test the plea raised by the petitioner. 15. In “Inspector Prem Chand”, the Hon'ble Supreme Court has held as under: “10. In State of Punjab v. Ram Singh, Ex-Constable [ 1992 (4) SCC 54 ] it was stated: (SCC pp.57-58, para 5) "5. Misconduct has been defined in Black's Law Dictionary, 6th Edn. at p. 999, thus: 'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as: 'Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.' " 11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p.3027, the term “misconduct” has been defined as under: "The term 'misconduct' implies a wrongful intention, and not a mere error of judgment. * * * Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct. [See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju (2006) 3 SCC 143 ] 12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. 'Misconduct' literally means wrong conduct or improper conduct. [See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju (2006) 3 SCC 143 ] 12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J. Ahmed [ (1979) 2 SCC 286 ], whereupon Mr. Sharan himself has placed reliance, this Court held so stating: (SCC pp. 292-93, para 11) "11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce v. Foster (17 QB 536, 542)]. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) (1959) 1 WLR 698 )]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur [(1959) 61 Bom LR 1596] and Satubha K. Vaghela v. Moosa Raza [10 Guj LR 23]. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under: 'Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.' 16. A learned single Judge of this Court allowed W.P.(S) No.5239 of 2013 holding that the mode of executing the work by the petitioner can at best be said to be an error of judgment and, moreover, the nature of punishment shocks the conscience of the Court. 17. Considering the nature of dispute involved in the present case, we are of the opinion that there is nothing at stake for the appellant-State of Jharkhand. 18. 17. Considering the nature of dispute involved in the present case, we are of the opinion that there is nothing at stake for the appellant-State of Jharkhand. 18. The appellant has demonstrated complete indifference in the matter and did not take steps for filing of L.P.A No.317 of 2020 within the period of limitation. The explanation offered by the appellant in the application for condonation of delay, such as, a copy of the order dated 8th August 2019 passed in W.P.(S) No.5239 of 2013 was received in the office on 24th September 2019 is highly unsatisfactory, and it is not even averred by the appellant that it was constantly following the matter. We are informed by Mr. Saurabh Shekhar, the learned counsel for the respondent, that an application for obtaining a certified copy of the order dated 8th August 2019 was made only on 25th September 2020, that is to say, after lapse of period of limitation. 19. For the aforesaid reasons, we are not inclined to condone the delay of 398 days in filing the instant Letters Patent Appeal. 20. Accordingly, I.A. No. 5405 of 2020 is dismissed. L.P.A No. 317 of 2020 21. In view of the order passed in I.A. No.5405 of 2020, L.P.A No.317 of 2020 stands dismissed. 22. I.A. No.5403 of 2020 stands disposed of.