An employee cannot receive both salary and pension for overlapping periods; acceptance of excess payments with knowledge leads to lawful recovery.

JUDGMENT :

Harsimran Singh Sethi, J.

CM-8702-CWP-2025

The prayer in the present application filed by the petitioner is for condonation of delay of 149 days in filing the application for restoration i.e. CM-8703-CWP-2025.

Notice of the application to the counsel opposite.

Mr. Rahul Rampal, Addl. AG, Punjab, accepts notice on behalf of respondent-State and raises no objection in case, the prayer made in the present application is allowed.

Keeping in view the averments mentioned in the application, the same is allowed. Consequently, the delay of 149 days in filing the application for restoration i.e. CM-8703-CWP-2025 is hereby condoned.

CM-8703-CWP-2025

Present application has been filed for recalling the order dated 28.11.2024, by which, the present writ petition was dismissed for non-prosecution.

Notice of the application to the counsel opposite.

Mr. Rahul Rampal, Addl. AG, Punjab, accepts notice on behalf of respondent-State and raises no objection in case, the prayer made in the present application is allowed.

Keeping in view the averments made in the application, which are duly supported by an affidavit, the same is allowed.

Consequently, the order dated 28.11.2024 is recalled and the writ petition is restored to its original number and status and the main writ petition is taken up for hearing today itself.

Main case

1. In the present petition, the challenge is to the order dated 03.04.2017 (Annexure P-3) vide which the recovery was directed from pension of the petitioner on the ground that excess payment of Rs.1,38,683/- from 01.10.2005 to 31.01.2007 was made, which has been recovered from the pensionary benefits of the petitioner, which is causing prejudice.

2. Learned counsel for the petitioner argues before this Court that once any payment has been made, even if the same was not as per the entitlement, but the said payment cannot be recovered after the retirement by placing reliance on the judgment of Hon’ble Supreme Court of India in the case State of Punjab and others etc. vs. Rafiq Masih (White Washer) etc. 2015(1) SCT 195 . Further, learned counsel argues that no recovery can be done from the retired employee and therefore, the benefit of excess payment already given to the petitioner employee, cannot be withdrawn and the recovered amount be released to the petitioner employee.

3. Upon notice of motion, the respondents have appeared. Learned counsel for the State has submitted that the retirement date of the petitioner employee was 30.09.2005 but after considering the correct date of birth i.e. 02.01.1949, the petitioner was allowed to continue in service upto 31.01.2007. Upto the said period, the petitioner has already availed the benefit of salary, which has been paid by the respondent-department and accepted by the petitioner employee.

4. Learned counsel for the respondent has further submitted that once the discrepancy regarding the date of birth came to the knowledge of the respondent-department, the petitioner was retired retrospectively from 01.10.2005 and inadvertently, the payment of pension from 01.10.2005 to 31.01.2007 was also paid apart from salary already paid for the said period. Learned counsel for the respondents further submits that for the period i.e. 01.10.2005 to 31.01.2007, the petitioner has already received the salary, hence, the petitioner could not have been given the pension for the same period as, no employee is entitled for the salary and pension for the same time duration and therefore, the amount of pension, which was wrongly paid to the petitioner employee, has been recovered.

5. I have heard learned counsel for the parties and have gone through the records of t