ORDER

1. This petition under Article 226 of Constitution of India has been filed against the order dated 17.12.2014 passed by Deputy Inspector General, Narmadapuram, M.P. in File No.DIG/HO.KS/PA/PUNISHMENT/625A/2014 by which the services of petitioner have been terminated on the ground of his conviction under sections 7, 13(1)D read with section 13(2) of Prevention of Corruption Act, 1988.

2. It the case of petitioner that in light of Rule 64 of M.P. Civil Services (Pension) Rules, 1976 (for brevity, ‘Rules, 1976’), petitioner is entitled for provisional pension for the reason that pension is the property of petitioner and which cannot be withheld in light of provisions of Article 300-A of Constitution of India. It is further submitted that non-payment of Gratuity, Leave Allowances, GPF, GIS and other allowances to petitioner is bad. It is further submitted that the Supreme Court in the case of Shankar Dass v. Union of India & Another reported in AIR 1985 SC 772, has held that a person should not be dismissed upon his conviction for trivial offence.

3. Per contra, petition is vehemently opposed by counsel for State. It is submitted that once petitioner has been convicted then there is no presumption of innocence in his favour and the provisions of rule 64 of Rules, 1976 would not apply.

4. Heard learned counsel for parties.

5. Appeal is a continuation of trial. Now, the only question of consideration is as to whether petitioner is entitled for provisional pension merely on the ground of pendency of criminal appeal against his conviction or not ?

6. When a person is facing trial, then there is an element of innocence attached to it. Merely, because a criminal trial is pending, a person cannot be treated as convicted. However, after conviction of the accused, if his conviction is not stayed and only his sentence is suspended then it cannot be presumed that the accused/employee is an innocent person. If the conviction is not stayed then the disqualifications attached to the conviction must follow.

7. In Criminal Appeal No.3647/2014 which was filed against the judgment of conviction dated 11.12.2014 passed by Special Judge (Prevention of Corruption Act, 1988), Hoshangabad, following order was passed :--

Criminal Appeal No.3647/2014

14.1.2015

Shri Sanjeev Kumar Tiwari, Advocate, for the appellant.

Shri Pankaj Dubey, Advocate, for the respondent.

Heard on admission.

Admit.

Record of the trial Court be called for.

List the case for final hearing.

Also heard on I.A. No.24998/2014, which is an application for suspension of sentence and grant of bail on behalf of sole appellant Bade Lal Pathak.

The appellant was on bail during and has been released on bail after conviction. He has deposited the fine amount.

On due consideration of the facts and circumstances of the case, we deem it proper to grant bail to the appellant. It is, therefore, directed that if he executes a personal bond in the sum of Rs.50,000/- and furnishes a solvent surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Hoshangabad, the execution of sentence of imprisonment alone passed against him shall remain suspended and he shall be released on bail. He shall now appear before the Registry of this Court on 20.4.2015 and on such other dates as may be directed by the office. It is made clear that conviction of the appellant is not suspended. The application is allowed to the extent mentioned above.

Certified copy as per rules.” (Emphasis supplied)

The use of word “alone” after the word imprisonment in the order makes it abundantly clear that Coordinate Bench of this Court had left no element of doubt that except the sentence nothing else has been stayed.

8. Even otherwise, the Supreme Court in the case of K.C. Sareen v. CBI, Chandigarh reported in (2001) 6 SCC 584, has held as under :-

“10. A three-Judge Bench of this Court has elaborately considered the scope and ambit of the powers of the appellate C