JUDGMENT : 1. Heard Mr. Deepak Kumar Prasad, learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Satyam Parmar, learned counsel appearing on behalf of the respondent-State. 3. The present writ petition has been filed for the following reliefs: - “a) For quashing of order contained in Memo No. 140(18) dated 21.02.2019 [Annexure-7] issued by the Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Jharkhand whereby the claim of the petitioner for payment of full salary/subsistence allowance during suspension period [14.06.2003 to 29.10.2007] has been rejected without considering the facts that the petitioner is not employee anywhere during period of suspension. b) For direction upon the respondents to pay the full salary to petitioner during his suspension period or at least subsistence allowance to petitioner from 14.06.2003 to 29.10.2007 after quashing the Memo No. 140(18) dated 21.02.2019 [Annexure-7] with 10% interest thereupon, it is well settled that the attendance during suspension period is not mandatory. And/Or Pass such other Order or Orders as Your Lordships may deem fit to do proper and conscionable justice to the petitioner.” Arguments of the Petitioner 4. Learned counsel for the petitioner submits that the petitioner is a medical officer and vide order dated 14.06.2003, the petitioner was suspended and his headquarter was fixed at Referral Hospital, Nehatta, Rohtas vide memo dated 20.06.2003. A departmental proceeding was initiated against him. Subsequently, the petitioner was allocated to the State of Jharkhand vide memo dated 09.02.2007 and thereafter, the Government of Bihar passed an order in departmental proceeding imposing minor punishment of censure and withholding of one increment with non-cumulative effect vide memo dated 29.10.2007. The order passed by the State of Bihar was communicated to the State of Jharkhand for doing the needful and the State of Jharkhand endorsed the same order vide order dated 05.02.2008. The learned counsel further submits that an F.I.R. was also instituted in connection with same charges and in the criminal proceedings final report was submitted in favour of the petitioner. 5. The learned counsel further submits that an F.I.R. was also instituted in connection with same charges and in the criminal proceedings final report was submitted in favour of the petitioner. 5. The learned counsel submits that neither the State of Bihar while imposing punishment on 29.10.2007 nor the State of Jharkhand while passing order on 05.02.2008 passed any order in terms of Rule 97 of Bihar Service Code /Jharkhand Service Code (hereinafter referred to as the Service Code) regarding the pays and allowances to be paid to the petitioner for the period of his absence from duty during the period of suspension and also as to whether or not the said period shall be treated as a period spent on duty. 6. The learned counsel submits that the petitioner had filed a writ petition before this Court being W.P.(S) No. 2757/2018 challenging the order imposing punishment by the State of Jharkhand and for release of the pays and allowances for the period of suspension of the petitioner between 14.06.2003 to 29.10.2007. The said writ petition being W.P.(S) No. 2757/2018 was disposed of vide order dated 31.10.2018 without making any comment on the merits of the case and by directing the competent authority to take a decision on the representation of the petitioner after scrutiny of the service record of the petitioner in accordance with law. Consequently, the petitioner filed a representation with a request to make payment of salary for the suspension period i.e., 14.06.2003 to 29.10.2007 which was denied vide order dated 21.02.2019 and is the impugned order in this case. 7. The learned counsel submits that while refusing to give the salary for the period of suspension, the authority has referred to the order of punishment passed by the Government of Bihar and on the basis of such order and referring to Rule 97 of the Service Code rejected the claim. So far as the subsistence allowance for the period of suspension is concerned, it has been recorded that the petitioner had marked his attendance in the referral hospital during the period of suspension only on one day and therefore, subsistence allowance was allowed only for one day i.e the date of joining. 8. So far as the subsistence allowance for the period of suspension is concerned, it has been recorded that the petitioner had marked his attendance in the referral hospital during the period of suspension only on one day and therefore, subsistence allowance was allowed only for one day i.e the date of joining. 8. Learned counsel appearing on behalf of the petitioner submits that as the respondents had not exercised their power to deny salary or subsistence allowance in terms of Rule 97 at the time of imposing minor punishment and after lapse of more than 11 years, the impugned order denying full salary has been passed while considering the representation claiming full salary. He submits that the impugned order is ex-facie illegal and not sustainable in the eyes of law. He submits that it is not open to the respondents to exercise powers under Rule 97 of the Service Code at any time as per their sweet will that too without any explanation for such delay. 9. Without prejudice to the aforesaid arguments, the learned counsel for the petitioner has also argued on the point of denial of even subsistence allowance on account of (i) not filing attendance on every day during the period of suspension and (ii) on account of non-submission of certificate in terms of Rule 96 of the Service Code certifying that he was not employed anywhere during the period of suspension, which is a ground raised in the counter affidavit but not mentioned in the impugned order. 10. The learned counsel has referred to a judgment passed by the Hon’ble Supreme Court in the case of Anwarun Nisha Khatoon vs. State of Bihar and Others reported in (2002) 6 SCC 703 para-9 to submit that if the State requires a certificate, then they should ask for a certificate in terms of Rule 96 of the Service Code. He submits that although the respondents have taken a stand in the counter-affidavit that the necessary certificate in terms of Rule 96 was not submitted, but the respondents never asked for it and the impugned order also does not reflect it as a ground for rejection of payment of subsistence allowance. 11. He submits that although the respondents have taken a stand in the counter-affidavit that the necessary certificate in terms of Rule 96 was not submitted, but the respondents never asked for it and the impugned order also does not reflect it as a ground for rejection of payment of subsistence allowance. 11. On the point of non-marking of attendance during the period of suspension, which is the reason for denial of subsistence allowance except for one day, the learned counsel has referred to a judgment passed by this Court in W.P.(S) No. 5542/2016 disposed of on 17.06.2019, which in turn, has referred to judgment passed in the case of Jagdamba Prasad Shukla vs. State of U.P. reported in (2007) 7 SCC 90 that there is no rule which requires a suspended employee to mark his attendance. The learned counsel submits that the reason for refusal for payment of subsistence allowance for the whole period is also not sustainable in the eyes of law as the same has been denied solely on the ground that the petitioner did not mark his attendance at the headquarter on every day during the period of suspension, except on one day. Arguments of the Respondents 12. Learned counsel appearing on behalf of the respondent-State, on the other hand, has opposed the prayer and submitted that the impugned order has been rightly passed and the authority has referred to Rule 97 to deny the salary to the petitioner and in absence of necessary certificate under Rule 96, the subsistence allowance could not have been granted and the petitioner ought to have also marked his attendance every day in order to be entitled to subsistence allowance. 13. However, during the course of argument, upon a specific query being raised by this Court, the learned counsel for the respondents has not cited any reason whatsoever for the delay in exercising power under Rule 97 of the Jharkhand Services Code and has further cited no reason for not exercising power under Rule 97 of the Jharkhand Services Code at the time of imposition of punishment by the State of Bihar and also at the time of endorsement of the punishment by the State of Jharkhand in the year 2008. Findings of this Court 14. Findings of this Court 14. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute that only minor punishment was imposed upon the petitioner by the State of Bihar in the year 2007 and the same was forwarded to the State of Jharkhand as the petitioner was allocated to Jharkhand Cadre and the State of Jharkhand endorsed the same order of punishment in the year 2008. 15. It is further not in dispute that neither the State of Bihar nor the State of Jharkhand have exercised their power under Rule 97 of the Jharkhand Services code with regard to the pays and allowances to be paid to the petitioner during his period of absence from duty and also whether the said period shall be treated as a period spent on duty. The petitioner approached the respondents for payment of subsistence allowance and salary for the period of suspension and having no response, filed aforesaid writ petition before this Court, which was disposed of by enabling the petitioner to file his representation with respect to his claim. At this stage of disposal of representation, the respondents woke up from slumbers and rejected the claim of salary for the period of suspension by referring to Rule 97 of the Service Code and also rejected the claim for subsistence allowance for the period of suspension on the ground that the petitioner had not marked his attendance during the period of suspension, except for one day. 16. The impugned order neither reflects any reason for not exercising power under Rule 97 of the Service Code at the time of imposition of punishment nor it reflects any reason for not taking any action in terms of Rule 97 of the Service Code for a long gap of more than 11 years from the date of order of punishment and revocation of suspension. The impugned order and the records of this case does not reflect issuance of any show-cause to the petitioner prior to rejection of his claim by exercising power under Rule 97 of Jharkhand Service Code. 17. Rule 97 of the Jharkhand Service Code is quoted as under: - “97. (1) When a Government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order? 17. Rule 97 of the Jharkhand Service Code is quoted as under: - “97. (1) When a Government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order? (a) regarding the pay and allowances 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 has 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 allowances 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 allowance 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. (5) In a case falling under clause 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 the Government servant.” 18. In the case decided by Hon’ble Patna High Court in Smt. Dipali Kundu vs. The State of Bihar and Others reported in 1999(1) BLJR 549 , the writ petitioner was denied full salary for the period of suspension except the subsistence allowance in terms of Rule 97 of the Service Code which was under challenge in the writ proceedings. Order in purported exercise of power under Rule 97 of the Service Code was passed almost 9 years after the petitioner was reinstated and her suspension was revoked. Order in purported exercise of power under Rule 97 of the Service Code was passed almost 9 years after the petitioner was reinstated and her suspension was revoked. The Hon’ble Patna High Court considered the judgment passed in the case of Chandradip Sharma vs. the State of Bihar reported in 1989 (1) BLJR 76 and Sheo Saran Prasad vs. State of Bihar reported in 1992 (1) PLJR 106 and also considered Rule 97 and allowed the writ petition after discussions made in para 19 and 20 which is as follows: “19. “In Baststha Prasad Sinha (supra), the Division Bench following the judgment of this court in Dr. Lakshni Narain Singh vs. State of Bihar and Ors. 1989 BBCJ 147 , observed that- …..It was, however, held that Rule 97 of the Bihar Service Code (‘Code’ in short) enjoins the competent authority to pass an order at the close of the departmental proceeding as to whether the Government Servant is to be paid full pay and allowance for the suspension period in terms of Rule 97(3) and whether, in that situation, the period in question is to be treated as spent on duty or absence from duty….. The Division Bench further observed that- It would appear from bare perusal of the rule that at the time of reinstatement of a Government servant who was dismissed, removed or suspended, the competent authority is required to make specific order as to the entitlement of the person concerned to his pay and allowance with respect to the period of suspension and whether the period is to be treated as spent on duty or not, as per Clause(1). Where the delinquent is fully exonerated by the competent authority or where the authority thinks that the suspension was wholly unjustified, he will as of right be entitled to full pay and allowance. However, in all other cases where the person is not fully exonerated or the suspension is not found to be wholly unjustified, the competent authority has to take a decision as to the entitlement of the delinquent to pay and allowance. In other words, in all other cases not covered by Clause (2) it is open to the competent authority to direct payment of only part of pay and allowances. In other words, in all other cases not covered by Clause (2) it is open to the competent authority to direct payment of only part of pay and allowances. Again, In cases covered by Clause (2), the period of absence has to be treated as a period spent on duty for all purposes but in cases covered by Clause (3), that is in all other cases, a discretion is again vested in the competent authority to decide as to whether the period shall be treated as absence from duty, or spent on duty for any specific purpose. An order directing that the Government Servant concerned shall not be entitled to pay and allowance save and except the subsistence allowance, and directing that the period in question shall be treated as absence from duty has to be passed by the competent authority in every case at the stage of final conclusion of the departmental proceeding……. Admittedly the departmental proceeding against the petitioner was conducted by the order dated 20.04.1987 (Annexure ‘7’) it was necessary for the Competent Authority to pass an order under Rule 97 of the Bihar Service Code immediately on the conclusion of the departmental proceeding the Respondents did not pass an order as envisaged under Rule 97 of the Bihar Service Code and there is no explanation whatsoever by the Respondent No. 3 in the Counter Affidavit as to why an order was not passed on 20.04.1987. Admittedly there has been inordinate delay for which no reason or explanation has been furnished by the Respondents and the petitioner has superannuated on 31.07.1996.” 19. The said judgment passed in the case of Dipali Kundu (supra) has been considered and followed by this Court in the case of Anant Kumar Pandey vs. State of Jharkhand passed in W.P. (S) No. 6660 of 2007 dated 06.11.2009. In the said case also, the suspension was revoked after imposing punishment of censor without taking adverse decision of forfeiture of salary for the suspended period in terms of Rule 97 of the Service Code and the impugned order in terms of Rule 97 of the Code was passed more than 5 years after the order of revocation of suspension and more than one year after the date of passing of the order of punishment. This Court ultimately quashed the order impugned and directed the competent Authority to pay full salary to the petitioner for the period of suspension after adjustment of subsistence allowance. Similar view was taken by this Court in another judgment passed in the case of Chandradeo Sharma vs. State of Jharkhand on 15.06.2017 in W.P. (S) No. 2853 of 2008 and a direction was issued to pay the salary for the period of suspension minus subsistence allowance. 20. The said judgment passed in W.P.(S) No. 6660/2007 [Anant Kumar Pandey] (supra) has been followed by this Court in W.P.(S) No. 725/2019 decided on 21.02.2022. This Court finds that the present case is squarely covered by the aforesaid judgments passed by Hon’ble Patna High Court followed in the case of Anant Kumar Pandey (supra) which has been followed in W.P.(S) No. 725/2019. 21. In the present case also, the petitioner was suspended on 14.06.2003 and minor punishment was imposed in the departmental proceedings vide order dated 29.10.2007, but no order was passed in terms of Rule 97 of the Service Code with regard to the pays and allowances to be paid to the petitioner during the period of suspension and whether the said period shall be treated as a period spent on duty. Initially the order of punishment was passed by the State of Bihar on 29.10.2007 and the same was endorsed by the State of Jharkhand on 05.02.2008 and even the State of Jharkhand did not pass any order in terms of Rule 97 of the Service Code and slept over the matter for long 11 years. The respondent-authority of State of Jharkhand exercised power under Rule 97 and denied salary as well as subsistence allowance to the petitioner after expiry of 11 years from the date of order of punishment. There is neither any explanation from the side of the respondents for not exercising such power under Rule 97 of the Service Code at the time of imposing punishment nor there is any explanation for not exercising power in terms of Rule 97 for long 11 years. 22. There is neither any explanation from the side of the respondents for not exercising such power under Rule 97 of the Service Code at the time of imposing punishment nor there is any explanation for not exercising power in terms of Rule 97 for long 11 years. 22. In the aforesaid circumstances and in view of the aforesaid judgments passed by this Court as well as the Hon’ble Patna High Court, the purported exercise of power under Rule 97 of the Service Code by the Respondent No.2 after expiry of more than 11 years from the date of imposing minor punishment and consequently refusing to pay salary to the petitioner for the period of suspension cannot be sustained in the eyes of law. Accordingly, the impugned order is setaside. Consequently, the respondent No.2 is directed to pay full salary to the petitioner for the period of suspension within a period of 3 months from the date of receipt/production of a copy of this order. Admittedly no subsistence allowance has been paid to the petitioner so far. Since the petitioner has been found entitled to the entire salary for the suspension period as held above, therefore there is no need of any further discussion with regards to payment of subsistence allowance. 23. If the entire salary for the period of suspension, as directed above, is not paid within a period of 3 months from the date receipt of a copy of this order, the petitioner would also be entitled for payment of interest on the salary for the period of suspension @ 6% from the date of communication of this order upon the Respondent no.2 till the date of payment. 24. With the aforesaid direction and observation, the present writ petition is allowed. 25. Interim order, if any, stands vacated. 26. Pending interlocutory application, if any, is closed.