Acquittal For Cruelty Upon Wife Based On Compromise, Not Merits: Bombay High Court Says Dismissed Constable Not Entitled To 100% Backwages

A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep V Marne set aside a Maharashtra Administrative Tribunal order granting 100 percent back wages to a constable who was convicted of cruelty but later acquitted due to compromise.

“…respondent is not acquitted on merits. His acquittal is attributable to compromise with his wife…to expect payment of 100% salary and allowances during that period would be highly undesirable. Respondent had involved himself in a criminal case arising out of his private affairs unconnected with performance of his duties. He kept himself away from his duties on account of his conviction. In such circumstances there is no question of payment of full salary and allowances to the respondent”, the court held.

The respondent (constable) was convicted by the magistrate under sections 498A (cruelty to wife) and 323 (punishment for voluntarily causing hurt) of IPC on his wife’s complaint and sentenced to six months imprisonment. Consequently, he was dismissed from service on June 30, 1997. His appeal against conviction before the sessions court was dismissed. He filed a revision application in the High Court. The HC allowed compounding of the offence and acquitted him after he filed consent terms with his wife.

He was reinstated on March 26, 2013. The state decided to pay only 50 percent salary and allowances for the period of his dismissal. He challenged this before the Tribunal which allowed his application. Hence the present writ petition by the state.

AGP Mehra for the State submitted that he was not honourably acquitted but was equated due to compromised with the wife.

Advocate Kulkarni for the respondent submitted that no departmental enquiry was conducted against him and he was conducted only on account of conviction in the criminal case. Hen season title to full back wages upon order of dismissal beings at side.

The court noted that Rule 70 of the Maharashtra Civil Services (Joining Time, Foreign Services and Payment during Suspension, Dismissal and Removal of Employees) Rules, 1981 does not provide for automatic payment of salary after reversal of conviction. Rather, the competent authority has discretion to determine the quantum of back wages once the penalty of dismissal is reversed.

The court remarked that it is debatable whether any back wages were payable to him. There is no question of payment of full salary and allowances, the court added. The court said that 50% back wages is sufficient given that he did not perform duties for the 15 year long period of his dismissal.

The court added that he incapacitated himself from performing duties because of his conviction. Further, his conviction was even upheld by the appellate court prolonging the period of dismissal.

Thus, state isn’t liable to pay salary and allowances during the period when respondent remained under dismissal, the court held.

Case no. – Writ Petition No. 2470 of 2018

Citation: 2023 LiveLaw (Bom) 146

Case Title – State of Maharashtra and Ors v. Surendra G. Ghodake