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 vs. 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.

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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.

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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 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

(vi