JUDGMENT : Heard counsel for the parties. 2. Petitioner in this writ application has prayed for a direction upon the respondents to re-fix the pension of the petitioner on the basis of the last pay drawn by him and also for a direction to pay him the amount of gratuity, leave salary as well as arrears of pension together with penal interest and further to refund him the amount of Rs. 77,373/-which was recovered from the gratuity amount of the petitioner. 3. The petitioner was employed under the respondent J.S.E.B. and had retired from service on 31.01.2003 as Head Clerk in the Super Selection Grade from Dumka. His last drawn salary was Rs. 10,345/-per month on the scale of Rs. 5530 – 11220/-. 4. Prior to retirement, the petitioner had submitted all the requisite papers before the concerned authorities of his employer for assessment and calculation of the retiral dues payable to him. When, after retirement, the payment was not forthcoming, he filed a writ application before this Court vide W.P.(S) No. 3632 of 2004. The writ application was disposed of by order dated 09.08.2004 directing the respondent General Manager-cum-Chief Engineer, JSEB to consider the representation of the petitioner and to pay to the petitioner the legally payable amount within a period of four months as stipulated in the order. The petitioner filed his representations one after the other but when no order was passed by the respondents, he filed a contempt application before this Court against the erring officials of the respondents which is still pending. 5. The contention of the petitioner is that upon being informed about the filing of the contempt application, the Respondent No. 2 had passed an order directing recovery of a sum of Rs. 77,373/-from the gratuity amount of the petitioner on the allegation that some excess payment was received by the petitioner since in the year 1983 and such excess payment needs to be recovered from the petitioner. Learned counsel for the petitioner explains that the petitioner used to get his provisional pension on the basis of the last pay drawn by him and he was paid his leave salary on the basis of the above scale and furthermore, on the same scale, an amount of Rs. 2,53,061 which was payable towards gratuity was also sanctioned by the Joint Secretary, JSEB. 6. 2,53,061 which was payable towards gratuity was also sanctioned by the Joint Secretary, JSEB. 6. Assailing the order of the Respondent No. 2 pursuant to which a sum of Rs. 77,373/-has been recovered from the petitioner’s gratuity amount, counsel for the petitioner submits that the impugned order of the Respondent No. 2 is illegal and has been passed without affording the petitioner any opportunity of being heard and the amount has been recovered from the payable gratuity amount, after more than two years from the date of the petitioner’s superannuation from service. Learned counsel adds that before passing the impugned order of recovery, the respondents did not follow the prescribed procedure as laid down under Rule 43B of the Jharkhand Pension Rules. 7. A counter affidavit has been filed on behalf of the respondents acknowledging the fact that the petitioner had retired from service on 31.01.2003 as Head Clerk in the Super Selection Grade scale of pay. It is further stated that even prior to filing of this writ application, the petitioner was paid a sum of Rs. 64,823/-on 15.12.2003 by way of Leave Encashment and a sum of Rs. 2,53,061/-was sanctioned for payment by way of gratuity although from the aforesanctioned gratuity amount, a sum of Rs. 77,373/-was recovered on the ground that the petitioner had received excess salary by way of increments since the year 1982-83. Learned counsel for the respondents submits further that besides the aforesaid amounts, the petitioner has also been paid pension arrears, and other benefits for which he was found entitled, as indicated in para 7 of the counter affidavit. Learned counsel concedes however, that before passing the order of recovery of amount, no prior notice was issued to the petitioner nor was any proceeding initiated in terms of Rule 43(b) of the Jharkhand Pension Rules. 8. As it appears, the demand for refund of amount recovered, as advanced by the petitioner, is basically on account of the fact that prior to passing the order of recovery, he was neither informed by way of notice nor was given opportunity of being heard and no proceeding in terms of Rule 43(B) of the Jharkhand Pension Rules was initiated by the respondents. 9. This issue, by now is well settled. In the case of Syed Abdul Qadir & Ors. Vs. 9. This issue, by now is well settled. In the case of Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors., 2009(1) Supreme 163 the Apex Court has held that recovery of excess payment of emoluments/allowances not paid on account of any misrepresentation or fraud on the part of the employee, or made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, is not permissible. In the Full Bench Judgement of this Court in the case of State of Jharkhand & Ors. Vs. Padmlochan Kalindi & Anr. 2007(4) JLJR 451 , the same issue was considered and it was held that no amount can be recovered from the provisional/final pension or from the gratuity except by an order passed under Rule 43(B) of the Pension Rules. No proceeding under Rule 43(b) having been initiated while the pensioner was in service, the recovery of the purportedly excess paid amount from the gratuity is illegal. 10. Following the ratio as contained in the above referred judgements, I hold that the order passed by the Respondent No. 2 directing recovery of the amount of Rs. 77,373/-from the gratuity amount of the petitioner, is illegal and cannot be sustained and as such, the aforesaid amount which has been recovered from the gratuity of the petitioner shall have to be refunded by the respondents to the petitioner. Accordingly, I direct the Respondents to refund the amount to the petitioner within one month from the date of this order, together with interest calculated on the amount from the date of recovery, till final payment @ 9% per annum. 11. As regards petitioner’s claim for further retiral benefits, it appears that the grievance of the petitioner has been duly redressed in as much as the payment has been duly made by the respondents to the petitioner. 11. As regards petitioner’s claim for further retiral benefits, it appears that the grievance of the petitioner has been duly redressed in as much as the payment has been duly made by the respondents to the petitioner. However, if the petitioner has any further reservation regarding any further amount payable to him, he shall be at liberty to file a fresh representation before the concerned authorities of the respondents demanding such payments and within one month from the date of receipt of such representation, the concerned authorities of the respondents shall consider the same and pass appropriate orders and if the petitioner is found entitled to any such claim of payment as made by the petitioner, then the amount be assessed and paid to him within one month from the date of decision taken on the petitioner’s representation. 12. The respondents shall, furthermore, re-fix the petitioner’s pension on the basis of last paid salary and to pay all the arrears thereof, if any, after such re-fixation, within three months from the date of receipt/production of a copy of this order. With these observations, this writ application is disposed of. Let a copy of this order be given to the learned counsel for the respondents.