ORDER

1. At the outset, learned Government Advocate submits that an issue as the present one as to whether recovery can be effected in case of excess payment since has been referred to Larger Bench by order dated 11.4.2018 in W. A. No. 815/2017; the hearing of present case be deferred.

2. The order dated 11.4.2018 passed in W. A. No. 815/2017 reflects following questions of law referred to Larger Bench:

“1. Whether the recovery can be ordered to be affected from the pensionary benefits or from the salary in view of an undertaking or Indemnity Bond taken by the employer before the grant of benefit of pay refixation.

2. Whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under rule 65 of M. P. Civil Services (Pension) Rules, 1976.

3. Whether the undertaking sought at the time of grant of financial benefits on account of refixation of pay is a forced undertaking and thus not enforceable in light of judgment of Supreme Court in (1986) 3 SCC 136 (Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another).

4. Any other question which is raised for decision before the Larger Bench or which the Larger Bench considers arising out of the issues canvased.”

3. The facts of the present case reveal that neither any undertaking at the time of fixation was given/taken from the employee nor is there any material on record to establish that the employee has been forced to give an undertaking. As such, issues No. 1 and 3 referred to Larger Bench are not attracted in the present case.

4. As regard to second question referred to Larger Bench as to “whether the recovery on account of excess payment to an employee can be made in exercise of power conferred under rule 65 of M. P. Civil Services (Pension) Rules, 1976.

5. In the case at hand, the recovery is not shown to be done in purported exercise of power under rule 65 of 1976 Rules, therefore, this Court refrains from expressing any opinion as the issue is referred to Larger Bench.

6. Petitioner, a retired Sub-Inspector (Radio), has filed this petition being aggrieved of recovery of Rs. 1,47,238/- from the gratuity amount payable to him. The said recovery emanates from the refixation order dated 16.11.2015 (Annexure P/2); whereby, the petitioner's pay has been revised and re-fixed with effect from 1.1.2006. The petitioner has confined his challenge only to the recovery which has arisen due to re-fixation of his salary.

7. Return is filed by the respondents stating therein that at the time of superannuation of the petitioner on 31.12.2015 the service record of the petitioner was sent for verification to Joint Director, Treasury, Accounts & Pension who raised an objection as regard to fixation of pay of the petitioner under Madhya Pradesh Pay Revision Rules, 2009. Consequently, revised pay fixation order was passed on 8.2.2016 with consequential recovery of excess amount. It is further contended that at the time of preparation of pension proposal, the petitioner submitted indemnity bond stating therein that the State would be at liberty to recover the amount. It is urged that acting thereon, the recovery is effected.

8. Considered the rival submissions.

9. Since the petitioner has not questioned the re-fixation of his pay under the Madhya Pradesh Pay Revision Rules, 2009, the only issue which arises is as to whether it will be within the competence of authority concerned to effect recovery of the excess amount said to have paid to the petitioner due to wrong fixation.

10. Evidently, there is no material commended at as would establish that the petitioner had no role to play fixing his pay scale under Madhya Pradesh Pay Revision Rules, 2009. The pay was revised by the competent authority and the petitioner has been paid accordingly. It was only after his retirement when the matter was sent to the Joint Director, Treasury, Accounts & Pension, the error in pay fixation has been noticed resulting in correction of the fi