JUDGMENT : Challenge in this writ application is against the order dated 27.09.2004 (Annexure-10) issued by the Respondent No. 5 whereby the petitioner’s representation against the recovery of a sum of Rs. 92,169/-from his gratuity was rejected. A further prayer has been made for quashing the order dated 26.03.2003 vide Office Memo No. 1493 whereby an amount of Rs. 12,903/-has been recovered on the ground of delayed passing of Hindi Noting and Drafting Examination. The petitioner has also prayed for a direction upon Respondents to refund the entire amount recovered from the petitioner’s salary and his retiral dues along with interest there on. 2. The case of the petitioner in brief is that he was appointed as an Accounts Assistant and joined the office of the Electrical Superintending Engineer, Ranchi on 17.02.1965. Upon completion of 10 years of service on the same post and pay scale, he was granted selection grade vide office order dated 12.09.1980 with effect from 01.07.1977. Subsequently vide office order dated 14.02.1984 he was promoted to the post of Accountant and joined the office on 15.02.1984. Though he was promoted to the post of Accountant, he did not get any upgradation on scale nor any additional monetary benefit by way of any enhancement in the scale of pay since he was already granted the selection grade prior to his promotion. The order of promotion was subsequently confirmed by the respondent Board vide its office order dated 22.02.1990 (Annexure15). Since persons who did not get promotion even on completion of 20 years i.e. 10 years after grant of selection grade, and they were granted super selection grade and were paid salary at a higher scale than that of the petitioner and similarly situated several other persons, the Board on considering the anomaly, decided to give pay protection by granting the scale of super selection grade to the petitioner and similarly situated other persons and pursuant to such decision of the Board, as contained in the Office Order No. 5526 dated 30.10.1990, the petitioner and similarly situated persons like him were allowed the benefit of the super selection grade with effect from 01.08.1988 with the benefit of upgradation of pay scale by 12%. Pursuant to the recommendations of the 5th Pay Commission, the petitioner’s pay scale was revised with effect from 01.01.1996. Pursuant to the recommendations of the 5th Pay Commission, the petitioner’s pay scale was revised with effect from 01.01.1996. The statement regarding revision of pay scale was prepared by the competent authority in the prescribed Form ‘B’ which was duly vetted by the competent authority. The revised pay scale of the petitioner as fixed with effect from 01.01.1996 was on the basis of the corresponding scale which the petitioner used to draw after the grant of super selection grade with effect from 01.08.1988. Thereafter the petitioner retired from service on 30.04.2003. Since after his retirement his retiral benefits were not paid, he made repeated representations before the concerned authorities of the respondents and ultimately the amount of General Provident Fund was sanctioned and he was paid the same on 29.09.2003 but he was not paid the statutory interest for the delayed payment of the G.P.F. amount. Furthermore, the petitioner’s pension was provisionally fixed on 26.05.2003 at 90%. Likewise, even after his retirement, the respondents had sanctioned the leave encashment payable to him but despite such order passed on 07.06.2003, the amount of leave encashment has not been released. The petitioner had also applied for commutation of 40% of his pension as per the provisions under service rules and though his application was duly processed but the concerned respondents did not sanction the payment. Likewise, the respondents did not sanction the gratuity of the petitioner even after lapse of several months of his retirement. With the aforesaid grievance, the petitioner filed a writ application before this court vide W.P.(S) No. 352 of 2004. The writ petitioner wad disposed by an order dated 22.01.2004 with a direction to the respondents legally payable to the petitioner and with a corresponding direction to the petitioner to vacate the respondent’s quarter in his possession within the stipulated period. When the petitioner pointed out before this court about the inaction of the respondents in spite of the aforesaid order of this Court, a further order was passed by this Court on 30.04.2004 directing the respondents to make payments of the entire retrial dues to the petitioner. During the pendency of the interlocutory application, respondents sanctioned gratuity by their order dated 15.05.2004 but only after deducting a sum of Rs. 92,269/-on the ground that the said amount was given to the petitioner by way of excess payment and that the same was recoverable. During the pendency of the interlocutory application, respondents sanctioned gratuity by their order dated 15.05.2004 but only after deducting a sum of Rs. 92,269/-on the ground that the said amount was given to the petitioner by way of excess payment and that the same was recoverable. The respondents had proceeded to re-fix the pay scale of the petitioner by deducting one increment. As a result of the reduction of increment, the pension and gratuity of the petitioner has been sanctioned at a lesser rate. When the case was listed for hearing on 12.07.2004, the respondents produced a cheque for a sum of Rs. 1,91,034/-. When the petitioner brought to the notice of this Court that the respondents have illegally deducted a sum of Rs. 92,169/-, this Court gave liberty to the petitioner to raise an objection by filing a protest petition before G.M, Ranchi (Respondent No. 5) who was directed to consider the representation and take a final decision in accordance with law. 2. After disposal of the writ application with the above observations made by this Court, the petitioner filed his representation stating his objections against the recovery of the aforesaid amount from his gratuity, before the Respondent No. 5. He had also objected to the reduction of his pay scale by one increment. 3. Shri Amit Kumar Das, learned counsel for the petitioner would argue that the recovery of the aforesaid amount from the petitioner’s gratuity and the reduction of the petitioner’s pay scale by one increment is totally arbitrary and illegal and the same has been made on baseless grounds. Learned counsel explains that while passing the impugned order, the concerned authorities have overlooked the fact that the super selection grade was granted to the petitioner on the basis of the decision of the Board as contained in the Office Order No. 5526 dated 30.10.1990 and the same was implemented by the order of the Electrical Executive Engineer vide his Office Order dated 29.09.1991. The Electrical Executive Engineer had only fixed the pay scale of the petitioner in consonance with the aforesaid decision of the Board and not in exercise of any authority of his own. The Electrical Executive Engineer had only fixed the pay scale of the petitioner in consonance with the aforesaid decision of the Board and not in exercise of any authority of his own. Learned counsel explains further that the concerned authority had also failed to consider that other similarly situated employees who had been given the super selection grade along with the petitioner in spite of their promotion, were allowed to retire and receive the entire retiral dues and except the petitioner, no order for recovery of any amount has been passed against any of the other similarly situated employees. It is further submitted that the order for recovery of a sum of Rs. 12,903/-from the petitioner’s salary vide Annexure-12, is also arbitrary in as much as the petitioner had, during the tenure of his service, passed the Hindi Noting and Drafting Examination on 19.07.1995. Prior to the passing of the order for recovery of the aforesaid amount, the respondents did not give any show cause notice or opportunity of hearing to the petitioner. It is further submitted that the impugned order does not make any reference whatsoever to the petitioner’s claim for payment of the commuted value of pension for which he had applied way back on 11.06.2003. It is lastly submitted that the recovery of the amount from the petitioner’s gratuity after his retirement from service, is totally illegal and arbitrary since there was no fraud or misrepresentation practiced by the petitioner in the alleged excess payment made to him. 4. Learned counsel argues further that it is the established principles of law that no amount can be recovered from the provisional/final pension or from the gratuity of a retired employee except by an order passed under Rule 43(b) of the Pension Rules. Since no such proceeding was initiated against the petitioner while he was in service, the recovery of the amount from the petitioner’s gratuity is totally illegal. Learned counsel refers to and relies upon in this context, on the judgements of a full Bench of this Court in the case of State of Jharkhand and Others Vs. Padmalochan Kalindi & Another 2007(4) JLJR 451 and also on another judgement of this Court in the case of Smt. Normi Topno Vs. State of Jharkhand 2007(4) JLJR 466 . 5. Padmalochan Kalindi & Another 2007(4) JLJR 451 and also on another judgement of this Court in the case of Smt. Normi Topno Vs. State of Jharkhand 2007(4) JLJR 466 . 5. Counter affidavit has been filed by the respondents in which the entire claim and the stand taken by the petitioner has been denied and disputed. Shri Sumeet Gadodia, learned counsel for the respondents would explain that there is no illegality in the order of recovery of the amount from the petitioner’s gratuity and the full Bench judgements referred to and relied upon by the petitioner is not applicable to the facts and circumstances of the present case. Elaborating his argument, learned counsel would explain that as a matter of fact, pursuant to the order of this Court dated 12.07.2004 (Annexure-1) passed in the earlier writ application vide W.P.(S) No. 352 of 2004, the petitioner was afforded opportunity of being heard and final decision/order was passed by the respondent No. 5 on 27.09.2004 vide Annexure-10 to the writ application. The petitioner cannot therefore, argue that he was not granted any opportunity of being heard in respect of the objections which he has raised in his representation. Learned counsel explains further that it was detected later that the scale of super selection grade with effect from 01.08.1988 was erroneously and illegally granted to the petitioner by the Electrical Executive Engineer who had no authority to grant such scale. Learned counsel explains that as per the decision of the Board conveyed by its order No. 695 dated 03.10.1989, it is only on completion of 20 years of service that an employee would be entitled to the super selection grade whereas the petitioner had not earned such privilege as on 01.08.1988 which was the date from which the scale of super selection grade was given to him erroneously. Upon detection of such error, the Superintending Engineer, Electricity Circle, Ranchi vide his Order No. 54 dated 28.03.2000, had cancelled the fixation of the petitioner’s pay directing to revise the same in the light of the Board’s earlier decision dated 03.10.1989. Pursuant to the order, a revised pay fixation chart was accordingly prepared and the same was forwarded to the Accounts Department for correction and finalization, on 16.06.2001. The pay was accordingly fixed after receiving the corrected revised chart from the Accounts Department. Pursuant to the order, a revised pay fixation chart was accordingly prepared and the same was forwarded to the Accounts Department for correction and finalization, on 16.06.2001. The pay was accordingly fixed after receiving the corrected revised chart from the Accounts Department. It was again detected later that certain interpolations were made in the revised chart which was initially forwarded to the Accounts Department, in as much as against the pay scale of Rs. 1,250/-as on 01.01.1986 and an insertion was made with red ink to indicate the figure as Rs. 1,285/-and the revised pay scale as on 01.01.1986 was wrongly shown as Rs. 2,320/-in stead of Rs. 2,260/-. Likewise, the pay scale as on 01.08.1988 in the super selection grade was wrongly shown as Rs. 2,675/-. The contention of the learned counsel for the respondents is that the petitioner being the Accountant, had put his signature in the revised pay fixation chart which contained over writings and insertions inflating the figures in the pay scales. The petitioner being already informed that his originally fixed pay scale was cancelled by the order of the Superintending Engineer by the order dated 28.03.2000, the petitioner had suppressed this fact and had allowed the submission of the distorted revised pay fixation chart for being acted upon by the concerned authorities and in this manner, by practicing fraud and misrepresentation, the petitioner had allowed himself the benefits of a higher scale of pay than what was legitimately due to him. Learned counsel submits further that since the excess payment was made to the petitioner, the benefit of which he had derived by practicing fraud and misrepresentation, the petitioner cannot now make any grievance against the deduction of the excess paid amount from his gratuity. As regards recovery of a sum of Rs. 12,903/-, learned counsel explains that this amount also was sought to be recovered as amount paid by way of excess payment to the petitioner which was not legitimately due to him. It is explained that the petitioner had passed the Hindi Noting and Drafting Examination only on 21.07.1985 though he ought to have passed the said examination on or before 16.07.1979 and yet he had availed the increment from 1979. 6. It is explained that the petitioner had passed the Hindi Noting and Drafting Examination only on 21.07.1985 though he ought to have passed the said examination on or before 16.07.1979 and yet he had availed the increment from 1979. 6. In reply counsel for the petitioner submits that the fixation of the scale of pay in the super selection grade was vetted by all the competent authorities and the petitioner cannot be accused of having practiced any fraud or misrepresentation merely because he had put his signature on the revised pay fixation chart. It is further explained that the question of a revised pay fixation in the case of the petitioner was obviously on account of the cancellation of the scale earlier fixed in respect of the petitioner as made by the order of the Superintending Engineer dated 28.03.2000. The concerned department had itself made a tentative chart and the same was forwarded to the Accounts Department for correction. The correction was accordingly made by the order of the concerned officers of the Accounts Department. It is further submitted that though the petitioner was promoted to the post of Accountant on 14.02.1984, but he did not get any upgradation of scale nor any additional monetary benefit by way of any enhancement in the scale of pay since he was already granted the selection grade prior to his promotion. The fixation of the petitioner’s pay scale on the super selection grade was made on the basis of the Board’s decision contained in the Office Order No. 5526 dated 30.10.1990. The petitioner and similarly situated persons like him were allowed benefit of the super selection grade with effect from 01.08.1988 on consideration of the fact that the petitioner had already earned such scale by virtue of his completing more than 20 years on 01.08.1988. The petitioner and similarly situated persons like him were allowed benefit of the super selection grade with effect from 01.08.1988 on consideration of the fact that the petitioner had already earned such scale by virtue of his completing more than 20 years on 01.08.1988. Learned counsel explains further that the tentative chart was forwarded to the Accounts Department only for the purpose of correction and it was in the process of correction that the purported over-writings in the chart were carried out but such over-writings did have the approval of the concerned senior authorities of the Accounts Department all of whom had put their respective signatures on the same and on receiving the corrected chart, no objection was raised from any corner that the corrected chart on the basis of which the revised pay scales were fixed, was in fact a fraudulent and misrepresented document. 7. From the rival submissions the facts which emerge are :- (i) The petitioner who had joined the post of Accounts Assistant on 17.02.1965 was granted selection grade with effect from 01.07.1977. Thereafter he was promoted to the post of Accountant on 17.02.1984. Though he was promoted to the post of Accountant but he did not get any additional monetary benefit nor any upgradation of scale on such promotion on account of the fact that he was already granted the selection grade on 01.07.1977. His promotion to the post of Accountant was confirmed on 22.09.1990. On the basis of the Board’s decision dated 30.10.1990, the Superintending Engineer by his order dated 19.01.1991 granted super selection grade to the petitioner with effect from 01.08.1988. (ii) The petitioner has explained that the grant of super selection grade from 01.08.1988 was passed on the Board’s decision and on the satisfaction achieved that the petitioner has earned the super selection grade since he had completed the requisite period of 20 years by that date. 8. The stand taken by the respondents is that by practicing fraud and misrepresentation, the petitioner had availed himself the benefit of the excess payment by way of enhanced salary which was not legitimately due to him and therefore, the respondents are entitled to recover the amount from the petitioner’s gratuity. The further stand is that the petitioner was granted opportunity of being heard and it was only after hearing him that the impugned order was passed for recovering the amount from his gratuity. 9. The further stand is that the petitioner was granted opportunity of being heard and it was only after hearing him that the impugned order was passed for recovering the amount from his gratuity. 9. It is by now well settled that recovery of any amount from pension and gratuity of retired Government employee is permitted only, in accordance with the provisions prescribed under Rule 43(b) of the Bihar/Jharkhand Pension Rules. The said provisions even bar a proceeding for any act, omission or commission which was of more than four years prior to the initiation of proceeding. Recovery of the amount from the gratuity could though be made if it is found that the excess payment was made on account of any fraud or misrepresentation practiced by the Government servant but such recovery can be made only after giving the Government servant an opportunity of being heard. 10. Two separate amounts have been deducted by the respondents from the gratuity of the petitioner. One being an amount of Rs. 92,169/-on the ground of wrong fixation of the scale pertaining to the super selection grade from 01.08.1988 and an amount of Rs. 12,903/-on the ground of wrong payment of increment of salary from 1979 even though the petitioner did not pass the Hindi Noting and Drafting Examination. 11. Apparently even as per the respondents, the wrong fixation of scale in the super selection grade was made in 1990 while the benefits of increment of salary related to the passing of the Hindi Noting and Drafting Examination was given to the petitioner from 1979. Admittedly, neither the State Government nor the competent authority had initiated any proceeding under Rule 43(b) of the Pension rules within the prescribed period of four years as laid down in the Rules. Furthermore, before proceeding to recover the amount from the petitioner’s gratuity, that too long after his retirement, the petitioner was not afforded any opportunity of being heard either on the allegation of his having committed fraud and misrepresentation or in the matter of recovery made on the ground that he had been paid excess by way of increment in his salary even though he had not passed the Hindi Noting and Drafting Examination in 1979. It appears that the petitioner has finally passed the Hindi Noting and Drafting Examination. It appears that the petitioner has finally passed the Hindi Noting and Drafting Examination. Apparently even though the benefit of increment was given to the petitioner from 1979 but it is not the case of the respondents that such benefit was given to him by any misrepresentation practiced by him. As regards the allegation that the petitioner had practiced fraud and misrepresentation in respect of the fixation of his pay in the super selection grade, the facts of the petitioner’s case reflect that his initial appointment was made on 07.02.1965. Ten years later he was granted selection grade on the basis of time bound promotion with effect from 01.07.1977. Subsequently though he was promoted to the post of Accountant on 14.02.1984, he was not granted any upgradation of scale nor was he given any additional monetary benefit by way of any enhancement in his scale of pay for the reason that he was already granted the selection grade prior to the date of his promotion. The order of his promotion was confirmed by the respondent Board on 22.02.1990. It is explained by the petitioner that on account of the existing anomaly in the pay scales of two different sections of the employees – one section comprising those who on completion of 20 years of service i.e. 10 years after grant of selection grade, were granted scale of pay of super selection grade at a higher scale, the other section comprising of the petitioner and other similarly situated persons, were not being given the super selection grade of pay, the Board had taken a decision vide its office order No. 5526 dated 30.10.1990 that the petitioner and the similar situated persons like him would be allowed the benefit of the scale of pay of the super selection grade with effect from 01.08.1988 with the benefit of upgradation of pay scale by 12%. The counter affidavit of the respondents does not advert to the above statements of facts as made by the petitioner nor is the same controverted even in the impugned order of the respondent authorities. It cannot, therefore, be said that the petitioner had obtained excess payment by knowingly and intentionally practicing fraud and misrepresentation. The counter affidavit of the respondents does not advert to the above statements of facts as made by the petitioner nor is the same controverted even in the impugned order of the respondent authorities. It cannot, therefore, be said that the petitioner had obtained excess payment by knowingly and intentionally practicing fraud and misrepresentation. The petitioner has been able to demonstrate that the revised fixation of his pay scale in the super selection grade from 01.08.1988 was in accordance with the decision taken by the Electricity Board and the corrections in the tentative revised chart forwarded to the Accounts Department and wherever such corrections were needed the corrections having been carried out in the revised chart. The corrected chart was verified and approved by the senior authorities of the Accounts Department, who after vetting the same, had forwarded the chart for guidance in the matter of fixing the revised pay scales which applied not only to the petitioner but also to several other Government employees who were similarly situated as the petitioner. 12. The inference which can be legitimately drawn is that the respondents have not shown any material that any excess amount was in fact received by the petitioner on his misrepresentation, collusion, fraud or negligence. 13. In the case of Laxman Prasad Gupta Vs. State of Jharkhand, the Full Bench of this Court had decided the issue with the following observations :- “In the light of the absence of any material to show that the excess amount was received by the petitioner on misrepresentation, collusion, fraud or negligence, the said excess amount cannot be recovered out of the retrial dues, after retirement, without following the procedure contemplated under Rule 43(b) of the Bihar Pension Rules (Now Jharkhand Pension Rules). In this case the said procedure, which is mandatory, has not been followed. Therefore, the action of the respondents for recovery of the amount from the retrial dues is not valid in law.” 14. The same ratio does squarely apply to the facts and circumstances of the present case also. As such, the action of the respondents making recovery of the amount from the retrial dues of the petitioner cannot be sustained in law. Accordingly, the impugned order dated 27.09.2004 (Annexure-10) of the Respondent No. 5, Order dated 26.03.2003 (Annexure-12) and the order dated 15.05.2004 (Annexure-6) are hereby set aside and this writ application is allowed. As such, the action of the respondents making recovery of the amount from the retrial dues of the petitioner cannot be sustained in law. Accordingly, the impugned order dated 27.09.2004 (Annexure-10) of the Respondent No. 5, Order dated 26.03.2003 (Annexure-12) and the order dated 15.05.2004 (Annexure-6) are hereby set aside and this writ application is allowed. The respondents are directed to pay to the petitioner the entire amount which has been recovered from his gratuity besides the arrears of salary which had accrued to him due to revision of pay scale for the period 01.01.1997 to October, 2000. The above directions must be complied with by the respondents within three months from the date of receipt of a copy of this order. Let a copy of this order be given to the Learned counsel for the respondents.