Application for condonation of delay in filing the patent appeal dismissed because of unsatisfactory reasons – Jharkhand high court

 IN THE HIGH COURT OF JHARKHAND AT RANCHI No. 52313 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 2 L.P.A. No. 3120 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. 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 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 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 That it is further stated that in the month of June 2020 when the department was partially functioning due to the COVID 19 pandemic the grounds of appeal was drafted by the 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 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 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 Mrs. Darshana Poddar Mishra the learned Additional Advocate General I relies on the decisions in “Esha Bhattacharjee v. Raghunathpur Nafar Academy”12 SCC 649 “State of U.P v. Harish Chandra”9 SCC 309 and “State of Jharkhand v Bahabiti Marandi”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.3120. 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.”3 SCC 563 the appellant cannot have the benefit of its own latches In “Postmaster General” the Hon ble Supreme Court has 3 L.P.A. No. 3120 held as under 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 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.” 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.52313. 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 lock down 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 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. The respondent was served Praptra “KA”in the financial year 2006 07 he made payment to the labourers through hand receipt and not through muster roll and 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 4 L.P.A. No. 3120 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. provides as under Rule 228 of the Bihar Public Works Account Code “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 Subdivisional 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. 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. 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. The learned writ Court referred to the judgment in “Inspector Prem Chand v. Govt. of NCT of Delhi and Others” it was stated: 3 SCC 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. Ahmed2 SCC 286] whereupon Mr. Sharan himself has placed reliance this Court held so stating: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(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 RazaNo.52313 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. For the aforesaid reasons we are not inclined to condone the delay of 398 days in filing the instant Letters Patent Accordingly I.A. No. 54020 is dismissed L.P.A No. 3120 In view of the order passed in I.A. No.5405 of 2020 L.P.A No.3120 stands dismissed I.A. No.54020 stands disposed of (Shree Chandrashekhar J (Ratnaker Bhengra J 

Summary: Application for condonation of delay in filing the patent appeal dismissed because of unsatisfactory reasons – Jharkhand high court An application for condonation of delay of 398 days overlapping the period of limitation was dismissed by the two-judge bench of HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR and HON’BLE MR. JUSTICE RATNAKAR BHANGRA in the case of the state of Jharkhand and Ors. Versus Sanjay Kumar Savita  (L.P.A. No. 317 of 2020)   The application was filed under section 5 of the Limitation Act and states the reasons for the delay in filing the letter patent appeal and the application states that there was no deliberate or instant delay in filing the appeal it was due to covid -19 and nationwide lockdown which caused the delay. The learned additional advocate general submitted the following precedents of “Esha Bhattacharjeev. Raghunathpur Nafar Academy” (2013) 12 SCC 649, “State of U.Pv. 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 in filling the L.P.A No.317 of 2020 and submitted that the application for obtaining the certified copy of the order was after the expiry of the period of limitation and clarified that the matter was continuously pursued with the learned Advocate General/Additional Advocate-General and the aforesaid plea taken by the appellant is not proper in as much as the Courts were open and the records are generally available and the council demanded to know the probable injury that can be caused to the appellant if the application under section 5 of the Limitation Act is not granted. The nature of dispute involved in the present case and the court came to the opinion that there is nothing at stake for the appellant-State of Jharkhand and it is not even averred by the appellant that it was constantly following the matter and as submitted by learned counsel 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 a lapse of the period of limitation. Therefore the court considered the following reasons and dismissed the application for condoning the delay.