JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. 1. Heard the learned counsel for the parties. 2. This writ petition has been filed for the following reliefs: “(a) For issuance of appropriate writs/orders or directions particularly a writ in nature of Certiorari for quashing the letter no. GE-3-Vet-Misc.VII-1-353 dated 19.09.2012 issued by the office of Accountant General, Jharkhand, Ranchi (respondent no. 3) by which the payable amount on account of leave encashment for 240 days (as mentioned in the letter no. GE-3-Vet-Misc.VII-17-511 dated 26.12.2011) has been rejected on account of his dismissal from service. (b) For issuance of appropriate writs/orders or directions upon the respondent no. 1 (The Secretary, Animal Husbandry Department, Government of Jharkhand) and to call upon the letter no. 3-pen-(2)15/2012 P. Pa./556 dated 10.05.2012 said to be issued in the name of the petitioner and quash the same as the same is highly illegal and arbitrary in view of the judgment rendered by the full Bench of this Hon'ble Court in Dr. Dudh Nath Pandey in L.P.A. No. 714/2004 and consequent thereto to pay the admitted amount of leave encashment of 240 days to the petitioner along with interest till the date of final payment made to the petitioner. (c) For issuance of appropriate writs/orders/or directions particularly a writ in nature of Mandamus directing upon the respondents to the pay the left over amount of General Provident Fund with statutory interest till the date the same is paid to the petitioner. (d) For any order/orders, direction/directions as your Lordships may deem fit and proper as in the fact and circumstance of the case.” Arguments of the petitioner 3. Learned counsel for the petitioner submits that the petitioner in the present case has two grievances; the first one is in relation to non-payment of leave encashment even for the period for which the petitioner had worked. The second one is in connection with part payment of the contribution of G.P.F. from the side of the petitioner. 4. The learned counsel submits that the petitioner has been dismissed from service on 02.01.2008. The authority slip for payment of G.P.F. so far as contribution of the petitioner is concerned, was issued on 07.01.2013. The petitioner had represented before the appropriate authority that in the authority slip, the last place of posting was wrongly mentioned as Jamtara, it ought to have been Hotwar. The authority slip for payment of G.P.F. so far as contribution of the petitioner is concerned, was issued on 07.01.2013. The petitioner had represented before the appropriate authority that in the authority slip, the last place of posting was wrongly mentioned as Jamtara, it ought to have been Hotwar. The learned counsel has further submitted that the leave encashment was sanctioned to the petitioner by the office of Accountant General vide Annexure-3 dated 26.12.2011. However, by the impugned order as contained in Annexure-9 dated 19.09.2012, the petitioner has been denied leave encashment on the ground that a dismissed employee is not entitled for leave encashment. 5. The learned counsel submits that the right of the petitioner to have leave encashment cannot be denied in view of the judgment passed by the Hon’ble Full Bench of this Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand, 2007 (4) JCR 1 (FB). The learned counsel has further submitted that there is no statutory rule or law enabling withholding leave encashment. The learned counsel has submitted that in the aforesaid judgment passed by the Hon’ble Full Bench of this Court, a circular issued by the State Government of the year 1993 was set-aside which made provision for withholding of leave encashment. The learned counsel has also submitted that while answering the reference, the Hon’ble Full Bench clearly held that under Rule 43(a) and 43(b) of Bihar/Jharkhand 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 has also been held that it does not give any power to withhold leave encashment at any stage either prior to the proceedings or after the proceedings. The learned counsel submits that in substance, even if, a person is held guilty in the departmental proceedings or convicted in a criminal case, the leave encashment cannot be denied. The learned counsel has also relied upon a judgment passed by the Hon’ble Supreme Court in the case of State of Jharkhand and Others vs. Jitendra Kumar Srivastava and Another, (2013) 12 SCC 210 . Arguments of the respondents 6. Learned counsel appearing on behalf of the respondents, while opposing the prayer of the petitioner, has relied upon Rule 101(a) of Bihar/Jharkhand Pension Rules and he submits that once a person is dismissed, his entire past service stands forfeited. Arguments of the respondents 6. Learned counsel appearing on behalf of the respondents, while opposing the prayer of the petitioner, has relied upon Rule 101(a) of Bihar/Jharkhand Pension Rules and he submits that once a person is dismissed, his entire past service stands forfeited. The learned counsel submits that once the entire past service stands forfeited, the petitioner is not entitled for leave encashment. The learned counsel, while responding to the aforesaid Full Bench Judgment of this Court, has submitted that there is a distinction. So far as the case of the petitioner is concerned, he was dismissed on account of the fact that he was convicted in a criminal case as back as in the year 2006. The learned counsel also submits that in the case of Dr. Dudh Nath Pandey (supra), there was no such corresponding fact of dismissal on account of conviction. Findings of this Court 7. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that on account of the conviction, the petitioner was ultimately dismissed from service on 02.01.2008. 8. The petitioner has two grievances in the present case. a. So far as the first grievance regarding payment of his contribution of G.P.F. is concerned, this Court finds that a specific statement has been made by the respondents in their counter-affidavit at paragraph-6 that the petitioner has been paid an amount of Rs. 3,05,330/- and also an amount of Rs. 1,58,935/-. However, in response to this, a rejoinder has been filed by the petitioner and at paragraph-7, it is the specific case of the petitioner that there are certain dues in relation to the period March 1994 to June, 1995 which the petitioner is entitled for payment with statutory interest. The entitlement of the petitioner to receive his contribution of G.P.F. amount is not in dispute. However, the petitioner is disputing the quantum and his specific grievance is that for the period from March 1994 to June, 1995, the balance amount remains unpaid and he claims the same with statutory interest. This point of accounting can be resolved by the respondent No. 2. (b) The second grievance of the petitioner is in connection with his claim for leave encashment. This Court finds that it has been held by the Hon’ble Full Bench of this Court in the case of Dr. This point of accounting can be resolved by the respondent No. 2. (b) The second grievance of the petitioner is in connection with his claim for leave encashment. This Court finds that it has been held by the Hon’ble Full Bench of this Court in the case of Dr. Dudh Nath Pandey (supra) that leave encashment is paid in lieu of unutilized leave and therefore it partakes the character of salary and in paragraph-35 of the aforesaid judgment, it has been held that Rule 43(a) and 43(b) of Bihar Pension Rules does not empower the government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding. It has further been held that it does not give any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding. Meaning thereby, even if a person is convicted, leave encashment cannot be withheld under the provisions of Bihar/Jharkhand Pension Rules. In such circumstances, it will be open to the petitioner to approach the respondent No. 2 to raise his claim with regard to differential amount of his contribution of GPF, if any, by filing a representation along with a copy of this order, the writ records and his supporting documents within a period of one month from today. Upon filing of such representation, the respondent No. 2 shall look into the records and pass a reasoned order in accordance with law within a period of three months from the date of filing of the representation. If any amount is found due to be paid to the petitioner, the same be paid to the petitioner with statutory interest within a period of two months from the date of passing of the reasoned order. 9. In the present case, the petitioner was dismissed on account of conviction prior to attaining the age of superannuation. Learned counsel for the respondents has not been able to show any provision of law which empowers the respondents to withhold payment of leave encashment under the provisions of Jharkhand Service Code or under the provisions of Jharkhand Pension Rules. No such provision has been shown by the respondents that when a person is dismissed from service, he can be disentitled from receiving the salary for the period he has worked. It has already been held by the Hon’ble Full Bench in the case of Dr. No such provision has been shown by the respondents that when a person is dismissed from service, he can be disentitled from receiving the salary for the period he has worked. It has already been held by the Hon’ble Full Bench in the case of Dr. Dudh Nath Pandey (supra) that leave encashment is a part and parcel of salary. In the aforesaid judgement Rule 5 of Bihar/Jharkhand Service code has also been considered. Some of the paragraphs of the judgment, relevant for the purposes of this case are quoted as under: “27. The perusal of the above circular, which has been issued on 06.07.1993, it transpires that it is in the nature of executive instructions issued by the Finance department. The said executive instruction contemplates the situation where there is some due against the retired government servant. The State contemplates certain situation and condition under which certain dues could be recovered from the leave encashment. Therefore, the executive instructions contemplates that the entire leave encashment should not be given to such government servant from whom some government dues is recoverable. Therefore, the entire Leave Encashment should only be paid after completion of the inquiry. After the completion of the inquiry the amount of due which can be quantified can be adjusted from the leave Encashment and remaining amount can be paid. 28. The above executive instruction is not a law under Rule 300A of the Constitution of India. In the absence of any statutory rule, how can it be claimed that the Leave Encashment can be withheld by the Government on the strength of the executive instructions? 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 empowers 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 guidelines cannot have the force of law. 33. It is held in (2003) 1 SCC 591 “the expression law within the meaning of Article 300A would mean a Parliamentary Act or an Act of the State Legislature or a Page 2858 statutory order having the force of law. 33. It is held in (2003) 1 SCC 591 “the expression law within the meaning of Article 300A would mean a Parliamentary Act or an Act of the State Legislature or a Page 2858 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 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 o 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. So far as the reliance in Rule 101(a) of Jharkhand Pension Rules is concerned, it only enables forfeiture of past service for the purposes of payment of pension etc. in terms of the Pension Rules. Rule 101(a) does not enables forfeiture of any due salary for the period an employee has already worked and consequently does not enable forfeiture of leave encashment which an employee earns while in service and is a part of his salary. The right to get salary including leave encashment in terms of the Bihar/Jharkhand service code is crystalized and vested while an employee is in service which cannot be taken away by virtue of dismissal of an employee in absence of any enabling provision of law. This Court is of the considered view that the forfeiture of past service does not entitle the respondents to deny the salary including leave encashment for the period the petitioner has already worked, rather the same could be a reason for denial of pension etc. This Court is of the considered view that the forfeiture of past service does not entitle the respondents to deny the salary including leave encashment for the period the petitioner has already worked, rather the same could be a reason for denial of pension etc. which are payable in terms of Bihar/Jharkhand Pension Rules. 11. Once the salary cannot be denied for the period for which an employee has already worked, there cannot be any reason to deny leave encashment in absence of any such corresponding provision either in Bihar/Jharkhand Service Code or in Bihar/Jharkhand Pension Rule. 12. Under such circumstances, there can be no reason to deny leave encashment to the petitioner for the period the petitioner has worked and is otherwise entitled under the provisions of Jharkhand Service Code. 13. In view of the aforesaid facts and circumstances, this Court is of the considered view that the impugned order as contained in Annexure-9 denying leave encashment to the petitioner for the period he had worked only on account of his dismissal cannot be sustained in the eyes of law, which is according set-aside. 14. Consequently, the petitioner would be entitled for the leave encashment for which appropriate order be passed by the respondent No. 1 upon a representation to be filed by the petitioner. The petitioner shall file a representation before the respondent No. 1 within a period of one month from today along with a copy of this order and the writ records. Upon filing of such representation, the respondent No. 1 is directed to look into the grievance of the petitioner and pass a reasoned order in accordance with law within a period of two months from the date of receipt of the representation. If the petitioner is found entitled to any admissible dues out of the reasoned order, the respondent No. 1 shall take appropriate steps, so that the same be provided to the petitioner within a period of one month from the date of the reasoned order. 15. The reasoned orders to be passed by the concerned respondents with regards to each of the aforesaid points be communicated to the petitioner through speed-post at the address which may be provided by the petitioner in the representation itself. 16. This writ petition is accordingly disposed of with the aforesaid observations and directions. 17. Pending interlocutory application, if any, is closed.