The suspension of sentence under Section 389(1) of the Criminal Procedure Code does not wipe out the judgment of conviction, and an employer or the Appropriate Government can take action against a convicted employee even during the pendency of an appeal or revision.

S.K. Dubey, J.

1. The two petitioners were prosecuted under Section 161 of the Indian Penal Code, and Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, in Special Criminal Case No. 18/86 in the Court of 2nd Additional Sessions Judge, Jabalpur. The Special Court vide judgment dated 21-10-1994 (Annexure-P/1) convicted the two petitioners under Section 161 of the Indian Penal Code and sentenced them to one year R.I. with fine of Rs. 1,000/- to each and further convicted under Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 to one year R. I. and fine of Rs. 1,000/- to each. Aggrieved of the said judgment of conviction the petitioners preferred a Criminal Appeal No. 1343/94 before this Court, wherein an application under Section 389(1) of the Criminal Procedure Code was also filed to suspend the sentence, wherein vide order dated 10-11-1994 (Annexure-P/2), the sentence of imprisonment only of the petitioners was suspended on execution of personal bonds of Rs. 10,000/- each with two sureties of Rs. 5,000/- each to the satisfaction of Chief Judicial Magistrate, Jabalpur.

2. After the conviction and sentence of the petitioners, the Appointing Authority served a notice dated 7-12-1994 (Annexure-P/3) under Rule 19 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, because of conviction and sentence, continuance of the petitioners in their service not in public interest and to show cause why they be not dismissed from their service on the ground of conduct which has led to their conviction on the aforesaid criminal charges. It is this show-cause, which has been challenged in this petition under Articles 226 and 227 of the Constitution.

3. Learned counsel for the petitioners submitted that an appeal is a continuation of original proceedings, the judgment of conviction and sentence of imprisonment having been suspended has not attained its finality, in the circumstances, issuance of show-cause notice prior to the decision of the appeal, is illegal. It is also submitted that even in a case where penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, it does not necessarily mean that such an employee should be removed or dismissed from service, as the nature of penalty, depends on the gravity of the offence, for which an employee is convicted. Therefore, before determining the question of penalty, summary inquiry is a must, so that, delinquent employee may place the circumstances for imposing no penalty or a lesser penalty, reliance was placed on a Division Bench decision of this Court in case of Tikaram Windwar v. Registrar, Co-operative Societies, M. P. Bhopal and Anr., 1978 MPLJ 57.

4. After hearing counsel, I am of the opinion that this petition is devoid of any substance. True, an appeal under Section 374 of the Code of Criminal Procedure against the judgment of conviction is continuation of the original proceedings, the right of the appeal carries with it a right of rehearing of the matter in its entirety on law as well as on facts, hence an appellate Court can do everything which a trial Court can do, but, mere filing of an appeal or its pendency does not wipe out the judgment of conviction till it is set aside. However, an order of suspension of sentence under Section 389(1) of the Criminal Procedure Code suspends or stays the execution of sentence.

5. It is well settled that on a judgment of conviction against which an appeal or revision is filed, an employer or Appropriate Government as the case may be need not to wait for taking an action against convicted employee, till the appeal or revision is decided against the conviction. However, if the conviction is set aside subsequently an appeal or otherwise the order of dismissal will cease to have its effect and the employee would be entitled to be reinstated and back wages from the date of dismissal till he is properly