JUDGMENT : 1. In all these cases, common issues are involved and as such, they are being disposed of vide common order. 2. The legal issues involved in the aforesaid writ petitions whether the Leave Encashment is payable to the retiring employees and cannot be withheld notwithstanding the departmental proceedings or criminal proceedings pending against an employee. 3. The question to be examined is whether the leave encashment is the retiral benefits from which recovery can be effected in terms of the applicable rules. 4. W.P. (S) No.4209 of 2018:The petitioner has challenged the order dated 04.05.2018 contained in Memo No.530 (Annexure 6) whereby the payment of Leave Encashment has been denied to the petitioner. In this case the petitioner was appointed on 05.02.1981 as Touring Veterinary Officer. The petitioner was convicted in the year 2007 in RC 44A/1996 PAT, RC 46A/1996 PAT, RC 49A/1996 PAT and RC 50A/1996 PAT. Thereafter, he was dismissed from service w.e.f. 31.07.2007. W.P. (S) No.4552 of 2017:The petitioner has challenged Memo No.717 dated 25.06.2014 (Annexure 1), whereby payment of Leave Encashment has been denied to the petitioner. In this case, the petitioner was joined on 24.10.1989 as Touring Veterinary Officer on being declared successful by Bihar Public Service Commission. He was convicted in R.C. 53A of 1996 and thereafter he was dismissed from service w.e.f. 25.02.2011. The petitioner has challenged his conviction in Cr. Appeal (SJ) No.621 of 2009, which is pending before this Court. W.P. (S) No.561 of 2015: The petitioner has challenged Memo No.797 dated 15.07.2014 (Annexure 10), whereby payment of Leave Encashment has been denied to the petitioner. In this case, petitioner was appointed on vide notification dated 29.12.1973 as Touring Veterinary Officer; he was convicted in RC 59(A)/1996 and RC 46(A)/1996. Accordingly the petitioner was dismissed from service w.e.f. 31.03.2004. The petitioner has preferred appeals before this Court which are pending. W.P. (S) No.4547 of 2017:The petitioner has prayed for direction upon the respondents to pay him the benefit of Leave Encashment. In this case, the petitioner joined his services as Touring Veterinary Officer on 05.02.1981. He was convicted in RC 43A/1996 PAT on 31.07.2007 and accordingly he was dismissed from service w.e.f. 31.07.2007. W.P. (S) No.969 of 2018: The petitioner has prayed for direction upon the respondents to pay him the benefit of Leave Encashment. In this case, the petitioner joined his services as Touring Veterinary Officer on 05.02.1981. He was convicted in RC 43A/1996 PAT on 31.07.2007 and accordingly he was dismissed from service w.e.f. 31.07.2007. W.P. (S) No.969 of 2018: The petitioner has prayed for direction upon the respondents to pay him the benefit of Leave Encashment. In this case, the petitioner was appointed as Touring Veterinary Officer but he was convicted in RC 57A/1996 on 27.04.2009. Accordingly, the petitioner was dismissed from service on 10.02.2011. 5. In all the writ petitions, the sole issue to be decided is whether leave encashment, which partakes character of salary, can be withheld in cases of employees against whom at the time of their superannuation, departmental proceedings or criminal proceedings were pending and later on, they were dismissed from service on account of their conviction in criminal cases. 6. The petitioners in all these cases have knocked the door of this Court aggrieved by the withholding of leave encashment. 7. Heard the parties. 8. Mr. Saurabh Shekhar, Advocate and Mr. Jyoti Prakash Sinha, Advocate, representing the petitioners, jointly submitted that the Leave Encashment cannot be withheld by the employer during pendency of criminal cases and even after dismissal from service. The learned counsel placed heavy reliance in the cases of Dr. Dudh Nath Pandey Vs. State of Jharkhand &Ors [2007 (4) JCR 1 (Jhr) (FB)], and State of Jharkhand & others Vs. Jitendra Kumar Srivastava & another [ (2013) 12 SCC 210 ]. It has been further argued by Mr. Saurabh Shekhar, learned counsel for the petitioners, that since the Leave Encashment partakes the character of salary, the same cannot be withheld by executive instructions without following statutory provisions. It was further argued that the executive instructions are not having any statutory character and, therefore, cannot be termed as law within the meaning of Article 300-A of the Constitution of India. Learned counsel places heavy reliance on the judgment of Division Bench of this Court given in Dr. Dudh Nath Pandey (supra), which has been affirmed by the Hon’ble Apex Court. Similarly, the rejection of Leave Encashment in the garb of judgment of Hon’ble Patna High Court rendered in the case of Arvind Kumar Singh Vs. Learned counsel places heavy reliance on the judgment of Division Bench of this Court given in Dr. Dudh Nath Pandey (supra), which has been affirmed by the Hon’ble Apex Court. Similarly, the rejection of Leave Encashment in the garb of judgment of Hon’ble Patna High Court rendered in the case of Arvind Kumar Singh Vs. State of Bihar and others [CWJC No.15328 of 2016 order dated 02.05.2018] is not tenable in the eyes of law, as the ratio of the judgment in Arvind Kumar Singh (supra) cannot be said to be a law in view of Dr. Dudh Nath Pandey’s case (supra) which has been affirmed by Hon’ble Supreme Court. 9. Per contra, counter affidavit has been filed. Mr. Prem Pujari, learned A.C. to GP-VI, submits that there is no any illegality or infirmity in the order of the respondents in rejecting the claim of the petitioners as they are not entitled for Leave Encashment. Learned counsel further argues that the ratio of Dr. Dudh Nath Pandey (supra) is not applicable in the instant case, as in these cases, the petitioners have been dismissed from service and it was only after conviction, their Leave Encashment has been withheld. Learned State Counsel placing heavy reliance in the judgment of Hon’ble Patna High Court in the case of Arvind Kumar Singh (supra) submits that when an employee is facing a criminal case or a departmental proceedings at the time of his retirement, the Government is well within its power in withholding the Leave Encashment. Learned State Counsel further submits that withholding of Leave Encashment is not by virtue of the provision of the Bihar Pension Rules or Leave Rules, but encashment of leave, being governed by the executive instructions, is withheld by the executive instructions which is permissible and in accordance with law. 10. Be that as it may, having heard the parties and from perusal of the documents brought on record, it would be apposite to go through the prevalent rules, regulations, circulars and the judgments on the aforesaid issues. 11. In the case of State of Jharkhand & others Vs. Jitendra Kumar Srivastava & another reported in (2013) 12 SCC 210 in paragraph 17 as under: - “17. 11. In the case of State of Jharkhand & others Vs. Jitendra Kumar Srivastava & another reported in (2013) 12 SCC 210 in paragraph 17 as under: - “17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.” 12. Similar issue fell for consideration before the Hon’ble Patna High Court in case of Arvind Kumar Singh Vs State of Bihar and others reported in [CWJC No.15328 of 2016 order dated 02.05.2018] in paragraphs 29 and 30 as under: “29. From the aforesaid, it is clear that as far as leave encashment is concerned, leave encashment is not provided for in the Pension Rule. Under the Bihar Service Code, a provision has been made for grant of Earned Leave and by an executive instruction issued on 6th of July, 1993, a provision is made for encashment of Earned Leave and while making the said provision a condition is stipulated that an employee shall not be granted encashment of Earned Leave till finalization of the departmental inquiry or the judicial proceeding. When the terms and conditions with regard to encashment of leave is not governed by any statutory provision and when the same is granted by an executive or administrative decision of the State Government so long as the administrative decision to withhold encashment of Earned Leave subsists, then on the happening of such circumstances, as are contemplated, we see no reason to hold that leave encashment can be granted even in cases where the employee at the time of retirement is facing departmental or judicial proceeding. The law laid down in this regard in the cases referred to hereinabove do not consider this aspect of the matter, all the cases proceeded under the mistaken assumption that the leave encashment is provided for in the Pension Rules, and, therefore, we have no hesitation in holding that when an employee is facing a criminal case or a departmental proceeding, at the time of his retirement, the Government is well within its power in withholding leave encashment. 30. Accordingly, we answer the questions referred to us in C.W.J.C. No. 15328/2016 in the following manner:- (1). The law laid down by the Bench of this Court in the case of Vijay Kumar Mishra (supra) holding that Leave Encashment of a Government employee can be withheld, is a correct proposition of law, however, we clarify that withholding of the leave encashment is not by virtue of the provisions of the Bihar Pension Rules or the leave rules, but, encashment of leave, being governed by executive instructions, its withholding by executive instruction is permissible and is in accordance with law. To that effect, the findings recorded and the observations made in the case of Vijay Kumar Mishra (supra) may be treated as incorrect and not indicating the correct position. (2). As far as the second question is concerned, we answer it by holding that the law laid down by the Bench of this Court in the case of State of Bihar and others Vs. Mozaffar Hassan (supra) and by the learned Single Judge in the case of Ram Prakash Yadav (supra) and the law laid down in the case of Vijay Kumar Mishra (supra) to hold that gratuity can also be withheld under the provisions of the Bihar Pension Rules is an incorrect proposition of law. It has not been correctly held. Gratuity cannot be withheld in view of the provisions of Rule 43(c) of the Bihar Pension Rules and the discussion made by us hereinabove, to that extent the law laid down in the case of Vijay Kumar Mishra and Mozaffar Hassan (supra) by the coordinate Division Bench stand overruled.” 13. The Division Bench of Jharkhand High Court in case of Dudh Nath Pandey Vs. State of Jharkhand & Ors reported in [2007 (4) JCR 1 (Jhr) (FB)] in paragraph 25held as under: - “25. The Division Bench of Jharkhand High Court in case of Dudh Nath Pandey Vs. State of Jharkhand & Ors reported in [2007 (4) JCR 1 (Jhr) (FB)] in paragraph 25held as under: - “25. Before we go into the legal sanctity of the circular, it must be remembered that the leave encashment is paid on account of unutilized leave and therefore, it partakes the character of salary. Pension is not longer considered as a bounty. The salary is a property given to the hands of the State which cannot be withheld except under the powers derived by a statute or law as contemplated under Article 300-A of the Constitution of India as laid down by the Supreme Court in AIR 1988 SC 1407 , State of U.P. v. Haji Ismail Noor and AIR 2003 SC 3966 , K.S.R.T.C. v. K.O. Varghese.” 14. Hon’ble Punjab and Haryana High Court in its Full Bench judgment in case of Punjab State Civil Supplies Corporation Limited V. Pyare Lal reported in (2014) AIR (Punjab) 147, examining the question whether the leave encashment is the retiral benefits from which recovery can be effected in terms of applicable Rules has clearly held in paragraph 10 as under: - “10. In fact the above view gets support from the recent Supreme Court Judgment reported as State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another, wherein the court held as under: - “16 The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. Article 300-A of the Constitution of India reads as under:- “300-A. Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning f this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is a constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.. 17. A person cannot be deprived of this pension without the authority of law, which is a constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.. 17. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different.” 11. In view thereof, since the right to withhold leave encashment is part of the Statutory Rules, it satisfies the test laid down by the Supreme Court. Thus, we approve the judgment in Harbhajan Singh Riar’s case while overruling the view taken in Gurdial Singh’s case (Supra). The judgments in two other cases i.e. B.S. Gupta’s case (supra) and Dayal Singh’s case (supra), pertain to Haryana. Since, the Rules applicable to Haryana, have not been brought to our notice, we leave the said matter open, to be adjudicated at an appropriate stage.” 15. Similarly, in the case of Dhir Chand vs. State of Haryana & Others, the High Court of Punjab and Haryana held as under: - “4. The legal position regarding leave encashment has been subject matter of attention of the Full Bench decision of this Court in case titled Punjab State Civil Supplies Corporation Ltd.& others Vs. PyareLal, 2014 (4) SCT 711. The Court specifically dealt with the issue of leave encashment in the background of criminal and disciplinary proceedings. Agreeing with the opinions expressed by the Allahabad and Jharkhand High Courts in their Full Bench decision in cause titled Bengali Babu Misra Vs. State of U.P. & others reported as 2003 3 AWC 1760 and MANU/UP/1042/2002 decided on 05.12.2002 and Dr. Dudh Nath Pandey Vs. Agreeing with the opinions expressed by the Allahabad and Jharkhand High Courts in their Full Bench decision in cause titled Bengali Babu Misra Vs. State of U.P. & others reported as 2003 3 AWC 1760 and MANU/UP/1042/2002 decided on 05.12.2002 and Dr. Dudh Nath Pandey Vs. The State of Jharkhand & others, 2009 (2) SLJ 105 both the Courts were of one mind in holding that leave encashment is a right in property, withholding of which, in the absence of statutory rule would mean depriving a person from his property without the procedure established by law. The action would be rendered in violation of Article 300-A of the Constitution of India. The result of dismissal would be only deprivation of pension and gratuity. But this is not true of leave encashment as it is part and parcel of salary. 5. The Full Bench in Pyare Lal’s case ruled that leave encashment is payable to a retiring employee notwithstanding pendency of departmental inquiry or criminal proceedings. The only distinction in this case is that it is not one of a retiring employee as this is a case of dismissal from service. However, this difference, to my mind, will not tilt the balance in favour of the State as still the settled legal position remains that leave encashment is part of salary and salary, like credit in General Provident Fund account of an employee, cannot be withheld in the event of dismissal because it represents money saved/earned for unutilized leave as a matter of right for work performed and duties discharged while in service.” 16. From perusal of the aforesaid judgments, it appears that the issue of payment of Earned Leave is no more res integra. 17. In the present case, two things arise for consideration: - (i) Under Rule 43A and 43B of Bihar Pension Rules, there is no power with the Government to withhold gratuity and pension during pendency of the departmental proceedings or criminal proceedings. It does not give any power to withhold Leave Encashment at any stage and prior to proceeding or after conclusions of the trial. (ii) Circular issued by Finance Department referring to withholding of Leave Encashment would not apply to the present facts of the case, as it has no sanctity of law. 18. The Division Bench of this Court in the case of Dr. (ii) Circular issued by Finance Department referring to withholding of Leave Encashment would not apply to the present facts of the case, as it has no sanctity of law. 18. The Division Bench of this Court in the case of Dr. Dudh Nath Pandey (supra) after considering every aspect of the matter and particularly the circular dated 06.07.1993held as under: - “30.According to the respondents, the circular has the force of law as it has been issued under Rule 5 of the Bihar Service Code. Rule 5 of the Bihar Service Code provides thus : 5. No power under these rules may be exercised by the State Government except after consultation with Finance Department. It shall be open to that department to prescribe by general or special order, cases in which its consent may be presumed to have been given, and to require that its opinion on any matter on which it has been consulted shall be submitted to the Council of Minster by the consulting department. 31. Perusal of the above Rule would make it clear that in exercising the powers under the provisions of Bihar Service Code, an executive instruction can be issued with the consent of the Finance Department. Thus, it is clear that before issuance of any circular with the consent of the Finance Department, the Government has to see whether it has power under statutory rule to issue such a circular. On the other hand, it is clear that no rule provides any power to the State Government to withhold leave encashment so as to attract Rule 5. 32. In other words, if there is a power available under any other rule or law to withhold leave encashment, the same can be further governed by executive instructions under Rule 5. Thus, Rule 5 of the Bihar Service Code does not help the respondents nor does it empower the State to withhold the Leave Encashment. As the circular was not issued under any powers conferred under the Rules, the Executive Instruction, which is a guidelines cannot have the force of law. 33. It is held in (2003) 1 SCC 591 “the expression law within the meaning of Article 300-A would mean a Parliamentary Act or an Act of the State Legislature or statutory order having the force of law. 33. It is held in (2003) 1 SCC 591 “the expression law within the meaning of Article 300-A would mean a Parliamentary Act or an Act of the State Legislature or statutory order having the force of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order.” 34. In the light of the above ruling, we are to hold that the circular issued by the Finance Department has no force of law and as such would not confer any power to withhold the leave encashment, which is termed as a property. 35. To sum up the answer for the two questions are as follows :- (i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding. (ii) The Circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law.” 19. The purport of Article 300-A of the Constitution of India has been considered and settled by Division Bench of this Court and held that right enjoyed under Article 300-A cannot be taken away by the executive instructions. The same has not been considered by the Hon’ble Patna High Court in its proper perspective. The observation of Hon’ble Patna High made in the case of Arvind Kumar Singh (Supra) Court does not reflect consideration of the view expressed by this Court in Dr. Dudh Nath Pandey (supra) in paras 33 and 34 in which it has been clearly held that the expression of law within the meaning of Article 300-A would mean a Parliament Act or an Act of the State Legislature or statutory order having the force of law. The State Government cannot while taking recourse to Executive power of State under Article 162 deprive a person of his property. Therefore, the circular has no force of law. 20. The State Government cannot while taking recourse to Executive power of State under Article 162 deprive a person of his property. Therefore, the circular has no force of law. 20. Considering the rival contentions of the parties and going through the judgments pronounced by Hon’ble Supreme Court, Patna high Court and the Division Bench of this Court, it appears that in its Full Bench judgment, the Patna High Court while coming to the conclusion that leave encashment can be withheld by the Government at the time of superannuation of an employee in case of pendency of departmental proceedings or criminal proceedings or dismissal, has not considered the Full Bench judgment of this Court rendered in the case of Dr. Dudh Nath Pandey (supra) in its proper perspective which has been affirmed by Hon’ble Apex Court wherein it has been stated that leave encashment partakes character of salary. 21. As a sequel of aforesaid rules, guidelines and judicial pronouncements, this Court is of the opinion that the issue involved in this case is no more res integra in view of the judgment of this Court given in the case of Dr. Dudh Nath Pandey (supra) and affirmed by Hon’ble Supreme Court in case of Jitendra Kumar Srivastava (Supra) and as such, Leave Encashment is protected under Article 300-A of the Constitution of India which cannot be taken away by any executive instructions and as such, the orders withholding Leave Encashment of the petitioners are hereby quashed and set aside and the respondents are directed to pay the amount of Leave Encashment to the petitioners as per their entitlement within a period of four weeks from the date of receipt/production of a copy of this order. 22. The writ petitions stand allowed.