ORDER : Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel for the Accountant General. 2. This writ petition has been filed by the petitioner for the following reliefs:- (i) For quashing of the resolution contained in memo no.152 dated 08.04.2011 whereby in purported exercise of power under Rule 43 (a) and 43 (b) of the Bihar Pension Rules decision was taken to permanently stop the full pension and gratuity of the petitioner. (ii) For a following up direction to the respondents to allow the petitioner full pension and gratuity. (iii) For appropriate declaration that the action of the respondents in the facts and circumstances of this case is illegal, arbitrary and whimsical exercise of power. It is violative of principles of natural justice and fair play as notice dated 02.08.2010 was in furtherance of post-decisional hearing as evident from the notice itself. (iv) For a further declaration that Rule 43 of the Bihar Pension Rule is inapplicable to the case of the petitioner. (v) For a direction to the respondents not to act upon resolution dated 08.04.2011 and pay the pension and gratuity as if resolution dated 08.04.2011 never existed. (vi) For any other relief of consequential reliefs to which the petitioners may be found entitled to in the facts and circumstances of this case. 3. Learned counsel for the petitioner submits that the petitioner was in service in the Animal Husbandry Department of the then State of Bihar as Touring Veterinary Officer(Mobile) and was implicated in the Fodder Scam Case in the year 1996. He further states that the petitioner superannuated on 31.07.2002, whereafter he was paid 90% of his provisional pension regularly till March 2011, although in the meantime he was convicted by the trial court in the year 2007 and his Cr. Appeal No.694 of 2007 is pending before the Jharkhand High Court. He further submits that the appeal is a continuation of the trial and no departmental proceeding had been initiated. In this regard, he relies upon a decision of the Apex Court in case of Akhtari Bi (Smt) vs. State of M.P., reported in (2001) 4 SCC 355 . 4. Appeal No.694 of 2007 is pending before the Jharkhand High Court. He further submits that the appeal is a continuation of the trial and no departmental proceeding had been initiated. In this regard, he relies upon a decision of the Apex Court in case of Akhtari Bi (Smt) vs. State of M.P., reported in (2001) 4 SCC 355 . 4. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that a decision has rightly been taken by the authorities to permanently stop the pension and gratuity of the petitioner. He also states that a proceeding under the provision of Rules 43 (a) and (b) of the Bihar Pension Rules, 1950 had been initiated against the petitioner and the state has the authority under the said provisions to take such steps, specially when the pensioner is convicted of a serious crime and had caused pecuniary loss to government by misconduct during his service. Learned counsel for the respondents also argues that notice of the said proceeding was given to the petitioner in which show-cause was filed by the petitioner on 26.08.2010 and only thereafter the impugned step has been taken by the authorities. He also argues that after conviction, even admission of criminal appeal by the higher court and grant of bail cannot act as bar for taking action against the convicted employee under the said provisions. In this regard he relies upon a decision of the Apex Court in case of Deputy Director of Collegiate Education (Administration), Madras vs. S. Nagoor Meera, reported in (1995) 3 SCC 377 while interpreting Article 311 (2) of the Constitution of India that punitive action is not barred against such convicted employees. Hence, he avers that this writ petition is fit to be dismissed. 5. From the averments made by learned counsel for the parties and the materials on record, it is quite apparent that the Fodder Scam Case was initiated in the year 1996 or earlier in which petitioner was implicated but he was never terminated rather he was allowed to superannuate on 31.07.2002, whereafter also 90% of his provisional pension was regularly paid to the petitioner from the date of his superannuation in the year 2002 till 2011. Thus it is apparent that till 9 years of his superannuation and till four years of his conviction in the year 2007, the respondents authorities regularly paid 90% of his provisional pension even during the pendency of the aforesaid criminal appeal before the Jharkhand High Court. 6. Furthermore, from the materials on record, it is quite apparent that a proceeding under the provision of Rules 43 (a) and (b) of the Bihar Pension Rules, 1950 was initiated and notice was sent to the petitioner only on 02.08.2010 (Annexure-4) to which the petitioner filed his show-cause on 26.08.2010 (Annexure-5) and thereafter impugned order was passed on 08.04.2011 (Annexure-7). 7. So far the reliance o f learned counsel for the respondents upon a decision of the Apex Court in case of Deputy Director of Collegiate Education (Administration), Madras (supra) is concerned, it is only regarding Article 311 (2) of the Constitution of India with respect to the dismissal, removal or reduction in rank of a government servant convicted by a criminal court. In the instant writ petition admittedly the petitioner has superannuated as far back as in the year 2002 and hence there is no occasion for his dismissal, removal or reduction in rank nor there is any question that a person convicted for such illegality can re-join the services. In the said circumstances the above mentioned case law relied upon by learned counsel for the respondents is not applicable to the facts and circumstances of this case. 8. Furthermore, it cannot be disputed that appeal is a continuation of the trial and when the authorities had waited for four years from the date of conviction of the petitioner by the trial court, it was proper for the respondents to wait up till the disposal of the criminal appeal pending before the Jharkhand High Court before stopping the pension of the petitioner. 9. In the said circumstances, this writ petition is allowed, the impugned orders of the authorities are hereby quashed with a liberty to the authorities to take steps in accordance with law after decision of the criminal appeal pending before the Jharkhand High Court and till then the respondents authorities must go on paying 90% of the provisional pension to the petitioner along with the arrears.