ORDER : Rongon Mukhopadhyay, J. In this application the petitioner has prayed for quashing of the order as contained in memo no. 3035 dated 19.11.2008 passed by the respondent no. 2 whereby and where under a decision has been taken to recover an amount of Rs. 5,05,680/- from the petitioner on the basis of letter no. 4285 dated 06.08.2008 sent by the Minor Irrigation, Water Resources Department, Bihar. A further prayer has been made for quashing the office order issued vide memo No. 433 dated 05.06.2009 by the respondent no. 5 by which a direction has been issued to recover the said amount of Rs. 5,05,680/- from the payable leave encashment and provisional gratuity of the petitioner. 2. The facts in brief is that the petitioner was appointed as Junior Engineer in the Department of Minor Irrigation, Water Resources Department in the undivided State of Bihar. After bifurcation the petitioner was allocated the State of Jharkhand and while the petitioner was posted as an Assistant Engineer, Water Resources Department a letter was sent from the State of Bihar to recover an amount of Rs. 7,93,647.30/- by way of bank draft and send it to the concerned Executive Engineer of the State of Bihar. A request was also made to suspend the petitioner and initiate a departmental proceeding against him. The petitioner challenged the said proposed action by filing a writ application being W.P (S) No. 6339 of 2006 which was disposed of with a liberty to the petitioner to file representation before the respondent no. 2 who shall consider the same and after giving an opportunity of hearing was to pass an appropriate order in accordance with law. Pursuant to the order passed in W.P(S) No. 6339 of 2006 the petitioner made a detailed representation before the respondent no. 2 for which a committee was constituted. The committee on consideration of the representation submitted its report on 31.03.2008. Thereafter, the respondent no. 2 had passed a reasoned order in which the report of the committee was considered and it was recommended to send the matter to the Water Resources Department, Bihar, Patna to verify the bills/measurement books and take necessary action. The petitioner had raised an objection against the reasoned order dated 28.11.2006 on the ground that the committee had not properly considered the documents submitted by the petitioner. The petitioner had raised an objection against the reasoned order dated 28.11.2006 on the ground that the committee had not properly considered the documents submitted by the petitioner. However, by virtue of an order dated 19.11.2008 based on the letter dated 06.08.2008 issued by the Minor Irrigation, Water Resources Department, Bihar an amount of Rs. 5,05,680/- was sought to be recovered from the petitioner. Pursuant to the letter dated 19.11.2008 a further letter vide memo no. 433 dated 05.06.2009 was issued by the respondent no. 5 wherein the said amount of Rs. 5,05,680/- was sought to be recovered from the leave encashment and provisional gratuity of the petitioner, since the petitioner has already superannuated from service on 31.05.2008. 3. Heard Mr. Siddhartha Ranjan, learned counsel appearing for the petitioner and M/s. Nehala Sharmin, learned J.C. to Sr. S.C.-II. 4. It has been submitted by the learned counsel for the petitioner that during his service period no departmental proceeding was initiated with respect to the alleged recovery sought to be made by the respondents. It has been submitted that the petitioner had already deposited the relevant bills/measurement books but the committee did not consider the same and merely based on a letter issued by the Minor Irrigation, Water Resources Department, Bihar the order for recovery has been made. Learned counsel submits that since the petitioner has already superannuated from service on 31.05.2008 the respondents could not have recovered any amount from the leave encashment or the provisional gratuity of the petitioner without taking resort to Rule 43(b) of the Jharkhand Pension Rules. Learned counsel further submits that the entire action on the part of the respondents is violative of the principle of natural justice as neither any proceeding was initiated during his service period nor a proceeding under Section 43(b) of the Jharkhand Pension Rules had been initiated after the petitioner had retired from service. In such circumstance, therefore, learned counsel seeks quashing of the impugned orders issued for recovery of the amount. 5. M/s. Nehala Sharmin, learned J.C. to Sr. S.C.-II, has submitted that pursuant to the order passed by this Court in W.P.(S) No. 6339 of 2006 a committee was constituted and pursuant to the recommendation of the committee the matter was sent to the respondent no. 5. M/s. Nehala Sharmin, learned J.C. to Sr. S.C.-II, has submitted that pursuant to the order passed by this Court in W.P.(S) No. 6339 of 2006 a committee was constituted and pursuant to the recommendation of the committee the matter was sent to the respondent no. 2 for verification of the documents and the same having been done certain amounts were found recoverable from the petitioner in consequence whereof the order as contained in memo no. 3035 dated 19.11.2008 was passed. It has been submitted that since the petitioner has already superannuated from service the excess amount was sought to be recovered from his leave encashment and provisional gratuity dues. There being no error or legal infirmity the learned counsel for the State pays for dismissing the writ application. 6. It is an admitted fact that no departmental proceeding was ever initiated against the petitioner for recovery of the alleged amount. Pursuant to the order passed in W.P.(S) No. 6339 of 2006 the respondent no. 2 was directed to consider the representation of the petitioner and to pass an order in accordance with law. In order to comply with the directions passed in W.P.(S) No. 6339 of 2006 a committee was constituted and based on the recommendation of the committee it was decided to send the recommendation of the committee as well as the documents produced by the petitioner as evidence before the Minor Irrigation, Water Resources Department, Bihar, Patna and to also determine the amount which was to be recovered. The letter sent by the Minor Irrigation, Water Resources Department, Bihar, Patna dated 06.08.2008 was the receipt for issuance of memo no. 3035 dated 19.11.2008 directing to recover an amount of Rs. 5,05,680/- from the petitioner which subsequently culminated in the issuance of memo no. 433 dated 05.06.2009 by the respondent no. 5. It is not in dispute that after the petitioner superannuated on 31.05.2008 no proceeding under Rule 43(b) of the Jharkhand Pension Rules was initiated. In support of his contention that such recovery after superannuation without resorting to the provision as contained in Rule 43(b) of the Pension Rule is not permissible in law learned counsel for the petitioner has referred to the following judgments:- 7. In the case of State of Jharkhand and others v. Padmalochan Kalindi and Anr. In support of his contention that such recovery after superannuation without resorting to the provision as contained in Rule 43(b) of the Pension Rule is not permissible in law learned counsel for the petitioner has referred to the following judgments:- 7. In the case of State of Jharkhand and others v. Padmalochan Kalindi and Anr. reported in [ 2007 (4) JLJR 451 ] the Hon’ble Full Bench while considering such question had held that no amount can be recovered from the pension except in accordance with the procedure prescribed under Rule 43(b) of the Pension Rules. 8. In another Full Bench judgment of this Court in the case of Dr. Dudh Nath Pandey v. State of Jharkhand and others reported in [2007 (4) JCR 1 (FB)] it was held that Government does not have the power to withdraw gratuity and pension during the pendency of the departmental proceedings or criminal proceedings. It does not have any power to withdraw leave encashment at any stage either prior to the proceeding or after conclusion of the proceedings. 9. In the case of Zainul Abedin v. The State of Jharkhand and Ors. reported in [ 2014 (4) JCR 689 (Jhr)] it was held that any recovery from the retrial benefits of the employees cannot be made after his retirement without initiating a proceeding under Rule 43(b) of the Jharkhand Pension Rules. 10. The Hon’ble Supreme Court in the case of State of Jharkhand and Ors. v. Jitendra Kumar Srivastava and another reported in (2013) 12 SCC 201 as held as follows:- “10. The present case is admittedly governed by the Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under: “43. (b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re-employment after retirement:” 11. From the reading of the aforesaid Rule 43(b), following position emerges: (i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding. (ii) This provision does not empower the State to invoke the said power while the departmental proceeding or judicial proceeding are pending. (iii) The power of withholding leave encashment is not provided under this Rule to the State irrespective of the result of the above proceedings. (iv) This power can be invoked only when the proceedings are concluded finding guilty and not before. 12. There is also a proviso to Rule 43(b), which provides that: “(a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made- (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. It is apparent that the proviso speaks about the institution of proceedings. For initiating proceedings, Rule 43(b) puts some conditions i.e. departmental proceeding as indicated in Rule 43(b), if not instituted while the Government servant was on duty, then it shall not be instituted except: (a) With the sanction of the Government, (b) It shall be in respect of an event which took place not more than four years before the institution of the proceedings. (c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made. (ci) Thus, insofar as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated. 13. (c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made. (ci) Thus, insofar as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated. 13. A reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending. 11. The aforesaid judicial pronouncement makes it abundantly clear that the State was precluded from taking steps for recovery of the amount of Rs. 5,05,680/- from the retrial dues of the petitioner without initiating any proceeding under Section 43(b) of the Pension Rules. 12. In such circumstances, the impugned order as contained in memo no. 3035 dated 19.11.2008 passed by the respondent no. 2 as well as the order contained in memo no. 433 dated 05.06.2009 by which a direction had been issued to recover the amount being not in accordance with law is, hereby, quashed and set aside. 13. It is further directed that if the amount in question has already been recovered from the provisional gratuity and the leave encashment of the petitioner the same shall be refunded back to the petitioner immediately and forthwith preferably within a period of four weeks from the date of receipt/production of a copy of this order. 14. This writ application stands disposed of. Application disposed of.