S.J. Mukhopadhaya, J.

1. In all these cases, as common question of law involved and almost common relief has been sought for, they were heard together and are being disposed of by this common judgment at the stage of admission with the consent of the counsel for the parties.

2. The petitioners while in the services of the State were suspended on different dates and subsequently retired on attaining the age of superannuation i.e., 58 years, while under suspension. They have prayed for direction on the respondents to pay them full salary of the period of suspension in the revised scale of pay.

3 The petitioner, Anant Padney of WP (S) No. 2085 of 2003, being an accused in the Fodder (A.H.D). Scam was suspended vide Memo No. 139 dated 8th February, 1996, an FIR having lodged against him. While under suspension, he retired on 31st January, 2002 on attaining the age of 58 years.

The petitioner, Parshidh Narayan Singh of WP (S) No. 2086 of 2003 being also an accused in Fodder (A.H.D.) Scam was suspended vide Memo No. 139 dated 8th February, 1996, one FIR having lodged against him. He also retired from the services of the State on 31st May, 2000 on attaining the age of superannuation.

The other petitioner, Kodai Ram of WP (S) No. 2087 of 2003 being also an accused in Fodder (A.H.D.) Scam, was suspended from the date he was taken in custody i.e., w.e.f. 4 February, 1996. He retired on 31st July, 1998 while under suspension.

Same is the case of other petitioner, Jagdish Sharma of WP (S) No. 3748 of 2002 who was also suspended on account of his being involved in the Fodder (A.H.D. Scam w.e.f. 14th February, 1996 and remained under suspension till the date of his superannuation i.e., till 31st May, 1998.

4. The question involved in these cases are :--

(i) Whether an employee of the State of Jharkhand under suspension would get automatically exonerated from the charges and is entitled for full salary of the period of suspension if no final order is passed in the departmental proceeding during the service period and the delinquent retires while under suspension?

(ii) Whether a suspended employee of the State of Jharkhand is entitled for subsistence grant (allowance) in the revised scale of pay?

5. The counsel for the petitioners relied on Rule 97 of the Bihar (Jharkhand) Service Code, 1952 (hereinafter referred to as the Service Code) and a Division Bench decision of Patna High Court in the case of State of Bihar and Ors. v. Kameshwar Prasad Gupta, reported in 2000 (2) BLJ 310.

In the said case, the employee was involved in a murder case and ultimately, convicted by the trial Court. The appeal preferred by him was also dismissed by the High Court. The said employee was placed under suspension, both because of criminal case and the departmental enquiry, but before any final order could be passed in the departmental proceeding, he superannuated on 31st January, 1997. The employee preferred a writ petition for payment of full salary of the period of suspension and retirement benefits which was allowed by the learned Single Judge. The State of Bihar preferred LPA No. 687 of 1999 against the judgment of learned Single Judge. Taking into consideration the facts and circumstances of the said case of the employee, Kameshwar Prasad Gupta and the provisions of Rule 97 of the Service Code, the Division Bench held, as follows :--

"In our view, the provisions of Rule 97 of the Bihar Service Code, as referred to above, is not applicable, to the present case, Because, admittedly, in this case, neither any order for revocation of the suspension was passed nor any order for reinstatement of the concerned respondent had been recorded. Therefore, in our view the learned Judge, has rightly directed the appellants to make payment of the salary to the respondent for the period he was under suspension."

"Now coming to the question regarding payment of retirement benefits true it is the State Government in appropriate cases can pass order under Rule 43 of the Bihar Pen