Shiva Kirti Singh, J.

1. Specific orders referring the relevant issues for decision by a larger Bench have been passed in CWJC No. 12181 of 2003 (Ram Binod Singh V/s. the Bihar State Electricity Board & Ors.) and in CWJC No. 8677 of 2003 (Shabbir Alam V/s. Bihar State Electricity Board). The other matters have been listed because they are also dependent upon the outcome of answer to the issues under reference.

2. The orders making reference disclose that the learned Single Judges hearing the writ petitions noticed that the view taken by a Division Bench of this Court in case of Bihar State Electricity Board & Ors. V/s. Man Bahadur & Ors., reported in 2004(3) PUR 3 appears to be contrary to earlier Division Bench judgments of this Court, particularly in the case of Bihar State Electricity Board & Ors. V/s. Madan Mohan Prasad & Ors., 2001 (2) PLJR 58.

3. In eight out of nine matters before us the petitioners are class III or class IV employees (or their widows/dependents) retired from service under the State of Bihar or Bihar State Electricity Board (hereinafter referred to as the Board). In the only Letters Patent Appeal before us, the sole respondent is a retired class III employee of the Board, whose writ petition has been allowed by the judgment under appeal passed by learned Single Judge holding that no recovery can be made of the excess payment made on account of wrong fixation of his pay while he was in service.

4. On behalf of the employees, who are the writ petitioners or respondent in the only LPA, a categorical stand has been taken that the Division Bench of this Court in the case of Bihar State Electricity Board V/s. Madan Mohan Prasad (supra) has taken a correct view of law in holding that "Law is well settled that money benefit paid to an employee in excess of his entitlement should not normally be recovered from him after a long lapse of time, particularly after his superannuation from service. It is, however, subject to two exceptions, namely, if the order granting the money benefit itself stipulates that the same is liable to be recovered if found erroneous at a later stage or is subject to approval by authorities. The second exception is that such a money benefit can be recovered if it is found at any later stage that the same had flowed to the employee on account of fraud, misrepresentation or the like attributable to him".

5. On the other hand on behalf of the Board and on behalf of the State of Bihar a stand has been taken that although the later Division Bench judgment in the case of BSEB & Ors. V/s. Man Bahadur & Ors. (supra) has missed to notice the earlier Division Bench judgment in the case of Madan Mohan Prasad but nonetheless it lays down the law correctly by holding that excess payment due to mistake in pay fixation/grant of increment or the like leading to wrong calculation of salary of the employees can be recovered from the retiral or other dues and the recovery cannot be resisted on the ground that there was no fraud or misrepresentation on the part of the concerned employee.

6. The view taken in the aforesaid two Division Bench judgments were in the context of retired employees of the Board from whom recovery was sought to be made on the premise that while in service they had received monetary benefits to which they were legally not entitled. In the case of Madan Mohan Prasad, the employee had received monetary benefits under a conditional order affording him pay protection. Later, in terms of the condition, the Board withdrew the pay protection and excess payment was recovered. Challenge to such recovery failed before the Division Bench in view of clear applicability of one of the two exceptions, namely, if the order granting benefit itself stipulates recovery after the order is found erroneous at a later stage. On the other hand, in the case of Man Bahadur recovery was allowed because excess amount was paid due to wrong pay fixation and the employees were not entitled to the same. The