ORDER : 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual connectivity. 2. The instant appeal, filed under clause 10 of the Letters Patent of judicature of High Court at Patna, is directed against the order/judgment dated 15.03.2018 passed by learned Single Judge in W.P. (S) No. 4836 of 2016 whereby and whereunder the prayer for direction upon the respondents for disbursement of amount of subsistence allowance pertaining to the period of suspension as also for payment of arrears of salary for the period 01.05.2014 to 19.05.2014 has been denied by dismissing the writ petition on the ground that by virtue of final order passed by the disciplinary authority, the amount pertaining to subsistence allowance was directed to be adjusted against the defalcated amount. 3. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are hereunder as: The writ petitioner-appellant, who was working as Assistant Manager, Jharkhand State Food and Civil Supply Corporation, Dhanbad, was put under suspension vide order dated 21.05.2014 in contemplation of departmental proceeding. He was also proceeded by instituting a criminal case being Tundi P.S. Case No. 32 of 2014 under Section 409 of the Indian Penal code and was taken into custody on 20.05.2014. The grievance of the writ petitioner-appellant before the writ Court was that though he was put under suspension but he was not paid subsistence grant in view of the provision of Rule 96 of the Jharkhand Service Code and to that effect he had also submitted representation before respondent no. 4 on 03.09.2014. The disciplinary authority decided to initiate a departmental proceeding and vide letter no. 616 dated 22.06.2016, the writ petitioner-appellant was intimated about the same enclosing therewith the memorandum of charge. Thereafter, the enquiry officer was appointed, who vide letter no. 620 dated 23.06.2016 directed the writ petitioner-appellant to submit his reply in his defence. After being released from judicial custody, the writ petitioner-appellant again made a representation before the respondent no. 4 for disbursement of the subsistence grant w.e.f. 20.05.2014 and payment of salary for the period 01.05.2014 to 19.05.2014 but it did not get any response. 620 dated 23.06.2016 directed the writ petitioner-appellant to submit his reply in his defence. After being released from judicial custody, the writ petitioner-appellant again made a representation before the respondent no. 4 for disbursement of the subsistence grant w.e.f. 20.05.2014 and payment of salary for the period 01.05.2014 to 19.05.2014 but it did not get any response. Meanwhile, the respondents-authorities has communicated decision dated 19.04.2017 issued under the signature of General Manager, Jharkhand State Food and Civil Supply Corporation, whereby and whereunder the writ petitioner-appellant was communicated that in pursuance to the decision taken in the departmental proceeding final order has been passed whereby it was decided to adjust the defalcated amount from the retiral benefits/gratuity as also from the other heads and for rest of the amount, the disciplinary authority has decided to initiate a Certificate Proceeding. In pursuance to the order dated 19.04.2017 the amount pertaining to subsistence grant was adjusted against the defalcated amount, being aggrieved with the same the writ petitioner-appellant has invoked the writ jurisdiction of the Court conferred under Article 226 of the Constitution of India by filing writ petition being W.P. (S) No. 4836 of 2016, which was dismissed vide order dated 15.03.2018 by denying the claim for payment of subsistence grant which was adjusted towards recovery of the defalcated amount on the ground that said amount since was adjusted against the defalcated amount, therefore, there is no reason to pass any direction for disbursement of subsistence allowance. The said order is subject matter of present intra court appeal. 4. Mr. The said order is subject matter of present intra court appeal. 4. Mr. Sudarshan Srivastava, learned counsel appearing for the writ petitioner-appellant has submitted with vehemence that the subsistence grant in no stretch of imagination can be withheld in view of the mandate of statute as contained in Rule 96 of the Jharkhand Service Code and that is the reason while putting the writ petitioner-appellant under suspension vide order dated 21.05.2014, it was directed in the order of suspension itself for disbursement of subsistence allowance in accordance with law but in entire course of departmental proceeding, the writ petitioner-appellant was not paid the subsistence allowance and finally the same was decided to be adjusted in pursuance to the final order passed on conclusion of departmental proceeding on 19.04.2017, which is absolutely illegal and improper as the subsistence allowance as per the mandate of Rule 96 of the Jharkhand Service Code was not paid to the writ petitioner-appellant or his dependents. Further, even it is evident from the order dated 19.04.2017 that the decision has been taken by the disciplinary authority for adjustment of the defalcated amount from the retiral benefits/gratuity as also the dues under different head and for rest of the amount a Certificate Proceeding was decided to be initiated against the writ petitioner-appellant and, therefore, according to him, the subsistence allowance cannot be considered to be the post retiral benefits or gratuity etc. and hence, the respondents-authorities have even acted contrary to the final order of adjustment dated 19.04.2017. According to learned counsel for the writ petitioner-appellant action of the respondents-authorities as also order dated 19.04.2017 passed on conclusion of the disciplinary proceeding have been questioned before the learned Single Judge under Article 226 of the Constitution of India but the same has not been considered in right perspective and the learned Single Judge has failed to appreciate that the subsistence grant cannot be withheld in view of the provision of Rule 96 of the Jharkhand Service Code, as such the order/judgment passed by learned Single Judge is not sustainable in the eyes of law. 5. Ms. Vandana Singh, learned Sr. S.C. III appearing for the respondent-State has submitted that the State of Jharkhand is a formal party, as such the respondent nos. 2 to 4, who are contesting party, are required to address this Court. 6. Upon this, Dr. A.K. Singh, learned counsel for the respondent nos. 5. Ms. Vandana Singh, learned Sr. S.C. III appearing for the respondent-State has submitted that the State of Jharkhand is a formal party, as such the respondent nos. 2 to 4, who are contesting party, are required to address this Court. 6. Upon this, Dr. A.K. Singh, learned counsel for the respondent nos. 2 to 4-Jharkhand State Food and Civil Supply Corporation has submitted that there is no error in the impugned order taking into consideration the nature of allegation against the writ petitioner-appellant as also the quantum of amount defalcated by the writ petitioner-appellant, which finally was found to be proved and, therefore, since the government stakes was put to loss and if the subsistence grant was also adjusted against the defalcated amount it cannot be said that any error was committed by the disciplinary authority and in that situation, the learned Single Judge has refused to interfere with the order and pass any positive direction by issuing the direction upon the respondents-authorities to disburse the amount of subsistence allowance, as such it cannot be said to have suffer from any infirmity. So far as arrears of salary is concerned, submission has been made by learned counsel for the respondent nos. 2 to 4 that the salary was also adjusted due to the fact that the charge of defalcation having been proved, final order dated 19.04.2017 was passed. Hence submission has been made that the order passed by the learned Single Judge needs no interference by this Court. 7. This Court having heard learned counsel for the parties and on appreciation of the rival submissions as also the finding recorded by the learned Single Judge, deem it fit and proper to go across the factual aspect of the matter. The writ petitioner-appellant was put under suspension vide order dated 21.05.2014 in contemplation of departmental proceeding with a condition that he will be paid subsistence allowance in course of suspension. The competent authority has also instituted an F.I.R. being Tundi P.S. Case No. 32 of 2014 under Section 409 of the Indian Penal code and was taken into custody on 20.05.2014. A regular departmental proceeding was initiated by serving a memorandum of charge, on the allegation that the writ petitioner-appellant defalcated the food-grains amounting to Rs. The competent authority has also instituted an F.I.R. being Tundi P.S. Case No. 32 of 2014 under Section 409 of the Indian Penal code and was taken into custody on 20.05.2014. A regular departmental proceeding was initiated by serving a memorandum of charge, on the allegation that the writ petitioner-appellant defalcated the food-grains amounting to Rs. 1,09,37,071.40 and the writ petitioner-appellant was directed to appear and submit reply in his defence, which the writ petitioner-appellant submitted but the same having not been found to be satisfactory and charges leveled against the writ petitioner-appellant having stood proved, which was accepted by the disciplinary authority, final order dated 19.04.2017 was passed by the disciplinary authority whereby and whereunder, it was decided to adjust the defalcated amount from the post retiral benefits/gratuity as also the amount under other heads, which the writ petitioner-appellant was legally entitled to receive and for the rest of the amount decision was taken to initiate a Certificate Proceeding. The writ petitioner-appellant has ventilated his grievance for adjustment of the subsistence grant and to that effect specific stand has been taken which has not been confronted by the respondent nos. 2 to 4 even though counter affidavit has been filed, which is available on record with this paper book of the memo of appeal. The writ petitioner-appellant has approached this Court for seeking a direction for payment of subsistence grant as also for arrears of salary from 01.05.2014 to 19.05.2014 but the writ petition was dismissed by putting reliance on the decision of the disciplinary authority dated 19.04.2017 by which the decision was taken for adjustment of the defalcated amount from the legal entitlement of the amount to be paid to the writ petitioner-appellant. 8. The question raised by learned counsel for the writ petitioner-appellant before the writ Court that even though as per the charge the amount has been defalcated which has been found to be proved which having been accepted by the disciplinary authority, the decision was taken to adjust the amount of post retiral benefit/gratuity as also from the amount lying under other heads and for rest of the amount Certificate Proceeding was directed to be initiated against the writ petitioner-appellant, the subsistence grant cannot be withheld, has been answered by the learned Single Judge in negative. 9. 9. This Court further deem it fit and proper, before considering the legality and propriety of the order passed by learned Single Judge, to refer the provision of Rule 96 of the Jharkhand Service Code, which reads hereunder as: 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 leaving 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 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, if in the opinion of the said authority, the period of 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 or as the case may be, the decreased amount of subsistence grant admissible under sub-clause (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. (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. It is evident from Rule 96 of the Jharkhand Service Code that it mandates that a Government servant under suspension be entitled for the following: (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 leaving 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. The statute provides entitling the Government servant who is put under suspension to receive subsistence grant mandatorily. The said amount, which we generally call as subsistence allowance is actually not an “allowance” rather it is paid by way of “grant” for the subsistence of the delinquent employee and his dependents in course of suspension. 10. Hence, the issue fell for consideration in this appeal is to consider the case of the writ petitioner-appellant in the light of the mandate of Rule as contained in Rule 96 of the Jharkhand Service Code, as referred herein above vis-a-vis factual aspect involved in this case. We have considered the provision of Rule 96 which mandate mandatorily for disbursement of the subsistence grant in course of order of suspension in favour of the delinquent employee against whom a departmental proceeding is to be initiated or even for any reason if the delinquent employee has been put under suspension and that is the reason it is the respondents-authority while issuing the order of suspension has also referred therein that the writ petitioner-appellant will be entitled for subsistence grant which would be paid in accordance with law, meaning thereby the subsistence grant is to be paid as per the provisions of Rule 96 of the Jharkhand Service Code. The writ petitioner-appellant was not paid subsistence grant in spite of the repeated request having been made in this regard. The writ petitioner-appellant was not paid subsistence grant in spite of the repeated request having been made in this regard. However, there is no requirement for making such requests for disbursement of the subsistence grant rather as has been provided under rule 96 of the Jharkhand Service Code, which mandates for disbursement of the subsistence grant in favour of the delinquent employee, who has been put under suspension even though the writ petitioner-appellant has made representation for disbursement of the grant but it was not paid and finally departmental proceeding was concluded and final order was passed vide order dated 19.04.2017 whereby and whereunder the decision was taken for adjustment of the defalcated amount from the retiral benefits/gratuity as also from the other heads. It requires to refer herein that the provision for admissibility of subsistence grant is provided under the applicable service code, herein the Jharkhand Service Code, which means that putting an employee under suspension in contemplation of departmental proceeding disbursement of subsistence grant in terms of the provision of Rule 96 of the Jharkhand Service Code will be treated to be a service condition. It is settled position of law that the departmental proceeding is to be initiated under the provision of applicable Discipline and Appeal Rules and in terms of the said provision the punishment is required to be imposed, and as such if an order of punishment passed in terms of the provision of applicable Discipline and Appeal Rules the same cannot be allowed to prevail upon the mandate which provides for disbursement of subsistence grant, as provided under the provision of Rule 96 of the Jharkhand Service Code and if it will be allowed to prevail the same would mean that the provision as contained in Service Code, which impliedly a service condition would be allowed to be given go by the provision of the Discipline and Appeal Rules which is not permissible since both the provisions i.e. the service condition as contained in the service rule and the condition provided in the Discipline and Appeal Rules are in two different fields. It is not in dispute that subsistence grant since was to be paid in pursuance to Rule 96 of the Jharkhand Service Code as such it will not be considered to be a retiral benefit/gratuity or dues against other heads since it is a grant and it cannot be said to be the benefit. Since in the final order dated 19.04.2017 the decision for adjustment of the amount from the retiral benefits/gratuity as also from other heads was ordered and for rest of the amount a Certificate Proceeding was decided to be initiated, hence, the plea of the respondent nos. 2 to 4 that in view of the departmental order dated 19.04.2017 the subsistence grant has rightly not been paid, is not accepted by this Court. 11. In view of the mandate of the provision of Rule 96 of the Jharkhand Service Code as also for the reason that the subsistence grant being in the nature of grant for the subsistence of the suspended employee to be paid in course of suspension cannot be considered to be a retiral benefit. Therefore, the decision of the respondents that the amount pertaining to subsistence grant cannot be paid in pursuance to order dated 19.04.2017 is not sustainable in the eyes of law. For the reasons aforesaid, we are of the view that that the learned Single Judge by coming to the finding that the subsistence grant cannot be paid in view of the departmental final order dated 19.04.2017, according to our considered view, suffers from infirmity. 12. So far as payment of arrears of salary for the period 01.05.2014 to 19.05.2014 is concerned, this Court is of the view that the view of the learned Single Judge pertaining to arrears of salary cannot be said to have any fault as the said amount will come under the fold of “other heads” as has been ordered by the respondents-authorities in order dated 19.04.2017. 13. In view of the aforesaid reasons, we are of the view that the order passed by learned Single Judge so far it relates to adjustment of the subsistence grant in favour of writ petitioner-appellant is concerned is not sustainable in the eyes of law and accordingly that part of order is quashed and set aside. 13. In view of the aforesaid reasons, we are of the view that the order passed by learned Single Judge so far it relates to adjustment of the subsistence grant in favour of writ petitioner-appellant is concerned is not sustainable in the eyes of law and accordingly that part of order is quashed and set aside. In consequence thereof, the respondents-corporation is directed to disburse the amount of subsistence grant to the writ petitioner-appellant, subject of fulfillment of other conditions, as applicable, within a period of three weeks from the date of receipt/production of copy of this order. 14. In the result, the instant appeal is allowed in part. 15. Consequent upon disposal of the appeal, I.A. No. 4135 of 2018 stands disposed of.