Heard the learned counsel for the parties.

2. The petitioner, in this writ application, has prayed for a direction upon the Respondents to refund the amount which has been deducted from his Gratuity, and further, for a direction to pay him salary for the two months, which has been withheld prior to the date of his retirement.

3. The petitioner was employed as an Accountant under the Respondent-Electricity Board. He retired from service with effect from 31st January 2003.

After his retirement, the petitioner was informed that a sum of Rs. 85,377/- has to be recovered from him on the ground that he had drawn the amount by way of excess payments on the basis of wrong calculation of annual increments ever since 1978.

The Respondents thereafter, proceeded to make the recovery from the Gratuity amount of the petitioner.

4. Assailing the impugned order of recovery, learned counsel for the petitioner submits that the order of recovery of the amount and the recovery made from the Gratuity, is thoroughly illegal and misconceived and is also against the principles of natural justice, inasmuch as the petitioner was never given any opportunity of being heard before passing any such order.

Learned counsel explains that though the Respondents allege that the petitioner had knowingly drawn excess payment by suppressing material facts, but the fact which would otherwise point out even from his service records, that the annual increments was fixed and affirmed by his superior in office and in absence of any allegation that he had practiced any fraud and misrepresentation and further, in absence of any finding by way of an enquiry conducted under the provisions of Rule 43 (b) of the Pension Rules, no order for recovery of any amount from the retiral benefits of the petitioner could have been passed.

5. Learned counsel for the Respondents, while adverting to the statements contained in several paragraphs of the counter affidavit, would point out that the petitioner was employed as an Accountant in the Department under the. Respondent-Board and knowing fully well, the amount of salary to which he was entitled under the law, had remained silent and continued to avail the benefits of the excess payments by way of annual increments in the salary. This, according to the learned counsel, constitutes an act of fraud and misrepresentation on the part of the petitioner.

Learned counsel explains further, that the petitioner had availed the benefits of three advance annual increments, which is not permissible under the law. He has also executed an undertaking that if any objection is raised by the Finance Department, then he would refund all such amounts, which he may have got in excess of what the Finance Department would permit and therefore, the petitioner cannot raise any grievance against the recovery made from his Gratuity.

Learned counsel, however, concedes that the action for recovery was initiated against the petitioner after his retirement from service and no proceeding was earlier initiated against him during the tenure of his service, nor even after his retirement. It is also conceded that prior to the taking of the decision for recovery of the amount, no notice was served upon the petitioner about the proposed deduction from his Gratuity.

6. The law is by now well-settled in this regard. The recovery of any amount from the retiral dues of any Government servant can be made only after recording a finding by way of enquiry contemplated under the provisions of Rule 43(b) of the Pension Rules to confirm that the employee had drawn excess amount by practicing fraud and misrepresentation. This has admittedly, not been done in the case of the petitioner. No proceeding was ever initiated under Rule 43(b) of the Pension Rules to record any finding that the petitioner has drawn excess payments by practicing fraud and misrepresentation and therefore, he was liable to refund the excess payments. It also appears that the decision to recover the amount was unilat