JUDGMENT : Heard Mr. Ashim Kumar Sahani, learned counsel for the petitioner and Mr. Mukesh Kumar Sinha, learned counsel for the respondents- State through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order as contained in Memo No.1269 dated 24.12.2011 passed by respondent No.4, whereby leave salary, gratuity and final pension of the petitioner has been withheld. 3. Learned counsel for the petitioner submits that the petitioner superannuated from the post of Accountant from the office of the respondent No.4 on 31.01.2007. However, he had not received 10% of pension, full gratuity and leave salary as retiral dues besides the amount of subsistence allowance for the period from 20.01.1996 to 21.08.1996. The petitioner has been paid only the provident fund amount. Even the pension which has been fixed has not taken into consideration the last pay drawn by the petitioner and no final pension has yet been fixed. 4. Mr. Sahani categorically contended that no proceeding, whatsoever, has been initiated under Jharkhand Pension Rules. He further submits that earlier he filed a writ application being W.P.(S) No.4551 of 2008 which was disposed of by this Court directing the petitioner to file a fresh representation and further directing the State authorities to consider and decide the representation in the light of ratio given in the case of Dudhnath Pandey reported in 2007 4 JCR 1 (FB). Pursuant thereto, the petitioner made representation, however, the same was rejected and impugned letter was issued on the ground that the amount shall be paid only after disposal of criminal case pending before the competent court. 5. Mr. Sahani further referred to the guidelines dated 29.03.2010 which was issued by the Finance Department of the Government of Jharkhand instructing the offices after disposal of the case of Dudhnath Pandey. 6. Mr. Mukesh Kumar Sinha, learned counsel for the respondents submits that the criminal case which was filed against the petitioner was disposed of even prior to filing of the writ application and the petitioner had filed revision application which was pending before this Court at the time of filing of this application; however, the same was dismissed in the year, 2018. However, he could not brought on record a single document to show as to whether any proceeding was initiated under Rule 43 (a)/(b) or Section 139 of Jharkhand Pension Rule. 7. However, he could not brought on record a single document to show as to whether any proceeding was initiated under Rule 43 (a)/(b) or Section 139 of Jharkhand Pension Rule. 7. Lastly, he submits that since no proceeding was initiated against this petitioner, as such, the case may be remitted back to the respondents by giving liberty to initiate appropriate proceeding and pass a fresh order. 8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits it appears that the respondents have taken specific plea in paragraph 9 & 10 of the counter affidavit in denying the claim of the petitioner which is quoted herein below: “9. That it is stated and submitted that in this context it is pertinent to mention here that a criminal case is pending against the petitioner for embezzlement of public money to the tune of Rs.2.64,647.56 and subsequently as per own admission from the part of delinquent before the Hon’ble High Court an amount of Rs.64,700.00 was deposited by the petitioner in installment and balance amount of Rs 1,99,947.56 is recoverable from the delinquent/petitioner. 10. That it is further stated and submitted that in the present circumstances as per provisions of Rule 85, 86 and 88 and as per notification no.9144 dt 22.8.74, 11220 dt 31.10.174 and letter no.4564 dt 6.7.93 issued by Finance Department, Govt of Jharkhand amount towards gratuity, unearned leave encashment is stopped till final disposal of the criminal case.” 9. After going through the judgment passed in the case of Dr. Dudh Nath Pandey vs. The State of Jharkhand & Ors. reported in 2007 4 JCR 1 (FB), it appears that the full Bench of this Court has considered the various guidelines which has been issued by the State Government especially provision of Rule 85 and 86 and 88 of Notification No. 9144 dated 28.08.1974 and 11220 dated 31.10.1974 and also letter No.4564 dated 06.07.1993 and held that the “executive instructions” is not a law under Rule 300 A of the Constitution of India. The Full Bench further held that in the absence of any statutory rules how can it be claimed that the leave encashment can be withheld by the Government on the strength of the executive instruction. Relevant paragraph i.e. 17, 18, 19, 20, 21 and 35 of the aforesaid judgment is quoted herein below: “17. The Full Bench further held that in the absence of any statutory rules how can it be claimed that the leave encashment can be withheld by the Government on the strength of the executive instruction. Relevant paragraph i.e. 17, 18, 19, 20, 21 and 35 of the aforesaid judgment is quoted herein below: “17. The various guidelines which have been given by the decisions, referred to above, are as follows:- (i) The conditions precedent for imposing penalty of withholding pension is that there should be a finding in departmental enquiry or judicial proceeding that the pensioner committed grave misconduct in the discharge of his duty while in office. (ii) Before the power under Rule 43(b) can be exercised in connection with alleged misconduct of the retired Government servant, it must be shown that in departmental proceeding or judicial proceeding, the concerned Government servant has been found guilty of grave misconduct. (iii) Unless the pensioner is found guilty of misconduct in departmental or judicial proceeding any part of his pension cannot be withheld. (iv) The employee's right to pension is a statutory right. The measure of deprivation of his pension must be commensurate with the gravity of misconduct as it offends the right to assistance as framed under Article 41 of the Constitution. (v) The pensionary dues payable to the employees including Gratuity which is also pension within the meaning of Bihar Pension Rules cannot be withheld. Similarly, Leave Encashment cannot also be withheld since that is paid in lieu of unutilized leave as it partakes the character of salary. (vi) The power under Rule 43(b) cannot be exercised before the pensioner is found in departmental or judicial proceeding guilty of grave misconduct. (vii) The bare reading of the Rule 43(a) of the Bihar Pension Rules would make it evident that the power to withhold or withdraw pension is permissible only when the pensioner is found to be guilty of grave misconduct and not that during the pendency of such proceedings. 18. In the light of the above guidelines, we will now look into the present facts of this case. In this matter, admittedly, the impugned order dated 6.6.2003 has been passed withholding pension, gratuity and the leave encashment on the ground of pendency of judicial proceedings. It is not in dispute that the said judicial proceeding has not been concluded. 18. In the light of the above guidelines, we will now look into the present facts of this case. In this matter, admittedly, the impugned order dated 6.6.2003 has been passed withholding pension, gratuity and the leave encashment on the ground of pendency of judicial proceedings. It is not in dispute that the said judicial proceeding has not been concluded. Similarly, it cannot be denied that there is no finding or any conviction holding the pensioner-appellant guilty of grave misconduct in the above process. 19. As indicated above, that Rule 43(b) does not contemplate the power to withhold the pension etc. during the pendency of judicial proceeding or departmental proceeding. It contemplates such power only when that pensioner has been found guilty of grave misconduct in those proceeding. Therefore, Rule 43(b) would not apply in the instant case. 20. It is also to be noticed that Rule 43(b) is relating to withholding of the pension or any part of it. Leave encashment is not covered under Rule 43(b). As such, there is no power given to the State Government to withhold the leave encashment under Rule 43(b) either during the pendency of the proceeding or after conclusion of the proceedings. 21. Therefore, we are to hold while answering the first question that the Government has no power to withhold pension or Gratuity on the ground of pendency of judicial or .departmental proceedings and there is no power at all for the State Government to withhold the leave encashment under Rule 43(b) at any stage. 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. Both the questions are answered accordingly.” 10. After going through the aforesaid judgment it is abundantly clear that there is no power of the Government to withhold gratuity and pension during pendency of any departmental or criminal proceeding. Both the questions are answered accordingly.” 10. After going through the aforesaid judgment it is abundantly clear that there is no power of the Government to withhold gratuity and pension during pendency of any departmental or criminal proceeding. Executive instructions are not law under Rule 300 A of the Constitution of India. It does not give power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding and further the Circular issued by the Finance Department for withholding of leave encashment would not apply to the present facts of the case as it has no sanctity of law. Admittedly; no proceeding has either been initiated or pending under Rule 43 (b) or Section 139 of Jharkhand Pension Rule 11. In view of the aforesaid finding and the judicial pronouncement; this Court is of the opinion that the impugned order deserves to be quashed. Consequently, the impugned order as contained in Memo No.1269 dated 24.12.2011, is, quashed and set aside. 12. Since the petitioner has already retired in the year 2007 itself; no fruitful purpose, as prayed by learned counsel for the respondent, would be served in remitting the case back to the respondent authorities in view of the specific riders stipulated in 43 (b) of Jharkhand Pension Rules. As such, the respondents are directed to give consequential benefits to the petitioner within a period of 4 months from the date of receipt of copy / production of this order failing which the petitioner shall be entitled for interest @ 6% from the date of entitlement till the date of payment.