Judgment S. B. Sinha, Gurusharan Sharma, JJ. 1. The petitioner in this application has prayed for quashing of a show-cause notice issued by respondent no.4 dated 1.10 1991 and 3.10.1991 as contained in Annexures 2 and 4 to the writ application whereby and whereunder the petitioner has been directed to show cause as to why he has been absenting from the Headquarter. The petitioner has, however, filed an application for amendment of the writ application on 22.9.1993 wherein he has questioned the Circular dated 2.8.1985 as contained in Annexure A to the counter-affidavit issued by the State of Bihar. 2. The petitioner was placed under suspension by an order dated 14.5.1987 as contained in annexure 1 to the writ application. According to the petitioner, the subsistence allowance had not been paid to him for the period mentioned in paragraphs 10 and 11 of the writ application. The petitioner by memo dated 23.9.1991 as contained in Annexure 2 to the writ application was asked to explain his absence from the office The the petitioner filed a show cause stating that he was ill from 23.9.1991 to 29.9 1991 and during that period he was not outside the Head Quarters. Another officer order dated 3.10.1991 was issued directing the petitioner to explain his absence on 3.10.1991 and on 1.10.1991 on receipt whereof he submitted his explanation which is contained in Annexure 3 to the writ application. 3. The respondents in their counter-affidavit, inter alia, have contended that the State of Bihar has issued a circular letter dated 2- 8-1985 whereby and whereunder all the suspended employees were directed to mark their attendance at headquarters during the period of suspension It was further directed that the suspended employees should obtain the permission from the controlling officer prior to leaving the headquarters and subsistence allowance would be paid on the basis of the attendances marked in the attendance register. 4. Mr. Ganpati Trivedi, learned counsel appearing on behalf of the petitioner submitted that petitioner could not be denied the subsistence allowance only because he did not mark his attendance on particular days. According to learned counsel if an employee is required to make his attendance, the same would mean that the employee is on duty. It was submitted that the purported circular is violative of Rules 90 and 97 of the bihar Service Code. According to learned counsel if an employee is required to make his attendance, the same would mean that the employee is on duty. It was submitted that the purported circular is violative of Rules 90 and 97 of the bihar Service Code. Learned counsel in support of his contention has relied upon a decision in Zonal Manager, Food Corporation of India and Ors v. Khaleel Ahmed Siddiqui. reported in 1982 LIC 1140. 5. The learned Advocate-General appearing on behalf of the State, however, could not refute the contention of Mr. Trivedi nor could he cite a decision to the contrary. 6. Rules 96 and 97 of the Bihar Service Code read thus ;- "96 (1) A Government servant under suspension shall be entitled to the following payments, namely : (a) Subsistence grant at an amount equal to the leave salary which the Government servant would have drawn, if he had been on leave, on half average pay, or on half pay and in addition cost of living allowance based on such leave salary : provided that where the period of suspension exceeds twelve months, the authority which made or is deemed to have made the order of suspension, shall be competent to vary the amount of subsistence grant for any period subsequent to the period of the first twelve months, as follows ;- (i) the amount of subsistence grant may be increased by a suitable amount not exceeding 50 per cent of the subsistence grant admissible during the period of the first twelve months, if, in the opinion of the said authority the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant; (ii) the amount of subsistence grant may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence grant admissible during the period of the first twelve months, suspension has been prolonged, due to reasons to be recorded in writing directly attributable to the Government servant. (iii) the rate of cost of living allowance will be based on the increased amount of subsistence grant admissible sub-clauses (i) and (ii) above. (iii) the rate of cost of living allowance will be based on the increased amount of subsistence grant admissible sub-clauses (i) and (ii) above. (b) Any other compensatory allowance to which a Government servant may be entitled from time to time on the basis of pay, which he received on the date of suspension provided that the Government servant shall not be entitled to that compensatory allowance unless the said authority is satisfied that the Government servant continues to meet the expenditure for which they are granted. (2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation. (3) The subsistence grant shall be subject to a minimum limit of Rs.10 per month.97. (1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order- (a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension that it was wholly unjustified the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe : provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose ; provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to tht Government servant. " 7. From a perusal of the aforementioned provisions, prima facie it appears that an employee who has been placed under suspension is entitled to his subsistence allowance only upon production of a certificate to the effect that he was not gainfully employed at any other place. 8. In this view of the matter, in our opinion, the petitioner should be entitled to the subsistence allowance However, we are of the view that an employee for some reason can be asked to report to the headquarters on particular days either in connection with a disciplinary proceeding or in the exigency of administration. 9. This writ application is, therefore, allowed and the respondents are directed to pay all lawful dues payable to him by way of subsistence allowance. Application Allowed.