A convicted public servant is not entitled to provisional pension under Rule 64 of the 1976 Rules, even if an appeal against the conviction is pending.

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’.

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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 :-

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“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 sub-

section 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

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