ORDER :

1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :

i) The Hon’ble court may be pleased to allow the petition and direct the respondents to grant provisional pension/living encashment to the petitioner till today because he has not been dismissed from the service.

ii) That, the Hon’ble court may be pleased to direct respondent not to dismissed from the service till the pendency of the case or any other order in favour of the petitioner.

2. It is submitted by counsel for the petitioner that the petitioner was caught red handed and accordingly an offence under section 7 and 13(1)(d)(i) read with section 13(2) of the Prevention of Corruption Act was registered and by judgment dated 16.3.2022 passed by the Special judge (P.C. Act) Rewa in Special Case (Lok) No.5/2019, he has been convicted and sentenced to undergo imprisonment of four years with fine of Rs.2,000/-. It is submitted that now the respondents have stopped making payment of provisional pension and they have also not released the leave encashment. It is further submitted that the petitioner has preferred an appeal which has been registered as Criminal Appeal No.2829/2022 and the sentence of the petitioner has been suspended. Since appeal is continuation of trial, therefore, the petitioner is entitled to continue to receive the provisional pension as provided under Rule 64 of the M.P. Civil Services (Pension) Rules, 1976, hereinafter referred to as ‘the 1976 Rules’.

3. Per contra, the petition is vehemently opposed by counsel for the State. It is submitted that it is true that appeal is continuation of trial but the provisions of Rule 64 of the 1976 Rules would not apply because after conviction, the petitioner has to face the disqualification attached to the conviction unless and until the conviction is stayed. By taking guidance from Order 42 Rule 5 CPC it is submitted that mere filing of an appeal would not operate as a stay. It is further submitted that if a decree is passed and the execution of the same is not stayed then the decree is executable in spite of the fact that the appeal is pending. Similarly, in the case of conviction, the accused/delinquent employee has to face the disqualification attached to the conviction unless and until they are stayed. There is no provision in the Cr.P.C. which provides that filing of appeal would automatically operate as stay of conviction. Furthermore, it is submitted that the Supreme Court in the case of K.C.Sareen Vs. CBI, Chandigarh, reported in (2001)6 SCC 584, has held that in the case of Prevention of Corruption Act, the conviction should not be stayed. Thus, the disqualification which is attached to the conviction has to be faced by the petitioner and even the provisions of Rule 64 of the 1976 Rules would not apply.

4. Heard the learned counsel for the petitioner.

5. The question involved in the present case is no more resintegra. This Court in the case of Badelal Pathak Vs. State of Madhya Pradesh and others, decided on 5.9.2023 in W.P.No.18341/2023 has held as under :

8. Even otherwise, the Supreme Court in the case of K.C. Sareen vs. 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 court envisaged in Section 389 of the Code (vide Rama Narang v. Ramesh Narang [(1995) 2 SCC 513]). Ahmadi, C.J., who authored the judgment for the Bench said that what can be suspended under Section 389(1) of the Code is the execution of the sentence or execution of the order and obviously the “order” referred to in the subsection must be an order which is capable of execution. Learned Chief Justice then observed thus: (SCC p. 524, para 15)

“An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and