High Court Division :(Special Original Jurisdiction)Farah Mahbub JFarid Ahmed JJudgmentAugust 11th, 2011Shahjahan Mia (Md)……….. Petitioner vsGovernment of Bangladesh, and others …………. Respondents Constitution of Bangladesh, 1972 Article 102(2) Since the suspension order had been withdrawn by the College authority and the authority itself kept the said amount in its account, though not lawfully the amount was subsequently deposited in favour of the government by treasury challan with Sonali Bank Ltd. Petitioner is entitled to receive the balance amount which was unduly kept in the College account and are now lying in the Government Treasury. .. …. (8 & 9) Farid Uddin Ahmed, Advocate -For the Petitioner.AHM Mushfiqur Rahman,. Advocate-For the Respondent No.7. Judgment Farah Mahbub J: In this Rule, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondent Nos. 1-5 have been called upon to show cause as to why they should not be directed to make payment to the petitioner of his entire arrear dues of Taka 1,89,272.24 only, as payable to him for the period from 3-7-1999 to 1-8-2004 along with interest at the bank rate upto the date of payment. 2. Facts, in brief, are that the petitioner had been serving in the Birol Degree College (in short, the College) as an Assistant Professor of the Department of Physics for long about 32 years with sincerity and efficiency since 21-7- 1975. While in service in the College the petitioner was temporarily suspended by the Governing Body of the College on 1-7-1999 at the instance of some local vested quarter out of sheer conspiracy. Ultimately, he was dismissed from service on 8-11-1999 under rule 17(Ga) of the Non-Government Institution Administration and Management Rules. The petitioner was, therefore, constrained to institute Other Class Suit No. 80 of 1999 before the Court of Subordinate Judge, (now, the Joint District Judge), Dinajpur who subsequently passed an order of temporary injunction restraining the Governing Body of the College from giving effect to the order of dismissal and to allow him to serve till disposal of the suit. Subsequently, the Governing Body of the College by adopting a resolution dated 17-7-2004 had withdrawn the order of suspension dated 1-7-2004 against the petitioner. Consequently, he has also with drawn the said suit by way of mutual settlement. Pursuant to the decision so adopted by the Governing Body of the College in its meeting dated 17-7-2004 and also in consideration of the withdrawal of Other Class Suit No. 80 of 1999 by the petitioner on 27-7-2004, the College authority by its letter bearing Memo No. 72(1)/4 dated 31-7-2004 re-instated the petitioner in service asking him to join within 7 (seven) days from the date of receipt of the said order. The petitioner accordingly joined in his respective post as Assistant Professor, (Physics) in the College on 1-8-2004 which was duly accepted by the respondent No.7 on the same day. 3. It has been contended that the petitioner as an Assistant Professor of the Department of Physics of the College was entitled to get half of the balance amount of the government portion of salary and accordingly an amount of Taka 1,89,272.24 only was payable to him on his reinstatement in service. It has been asserted that though the said amount was withdrawn by respondent No.7 through bill but instead of paying to him the said amount was kept in the College account bearing A/C No. 541 at Rupali Bank, Birol Branch and that the respondent No. 7 did not yet pay his arrear dues despite repeated requests so made to that effect. The anomaly was duly detected during the course of audit by respondent No.4. Pursuant thereto the respondent No.3 vide Memo No. Sha (Paridarshan)5/7/32 dated 25-2-2007 recommended for taking legal action against the respondent No.7 including the College authority for withdrawing the amount of Taka 1,89,272.24 which was payable to the petitioner out of the government portion salary. The relevant portion is quoted below:”???? ??? ????????? ????, ?????????? (??????) ?? ???????? ?????? ? ???? ?????? ???? ?????? ?????? ????????? ???????? ?????????? ?-?-?? ?????? ?????? ??????? ??? ??? ???? ??? ???????? ???? ???????? ??/?? ?? ????? ????? ????????? ????? ?????????? ??? ????? ??????? ?????????? ?????? ????????? ???? ?????????? ??? ?? ??? ???? ?-?-?? ?????? ?????? ???? ?????? ????? ?????? ???????????? ?-?-?? ???? ??-?-?? ??????? ???? ??????? ???? ?????? ?????? ?????? ??????? ?????? ??š’ ????? ????? ???? ??? ????? ????? (?,??,???/??) ???? ??????? ??? ??? ???? ???? ????? ????? ???? ????????? ?? ?????????? ?????? ????? ?? ????? ??????? ????¯’? ??????? ???? ????? ??????????? ?”???? ?????? ??? ????”?. The petitioner, thereafter, sent a legal notice dated 26-9-2007 (Annexure-F) to the respondent Nos. 6 and 7 requesting them to pay his arrear dues of Taka 1,89,272.24 only along with interest at the bank-rate upto the date of payment thereof within 15(fifteen) days from the date of receipt of the notice. On the receipt thereof the respondent Nos. 6 and 7 convened a meeting of the Governing Body of the college to be held on 5-12-2006 by issuance of notice dated 6- 11-2006. Accordingly, in the meeting it was resolved that legal opinion would be sought for from the Government Pleader also whether the period of suspension of the petitioner could. It all be adjudged as working days or not. The Government Pleader vide memo No. GP IDin (2)1/2007 dated 29-1-2007 gave his legal opinion to the effect that the Governing Body of the College having had withdrawn the suspension and dismissal order and had re-instated the petitioner in his post as Assistant Professor (Physics), the period of suspension of the petitioner would be deemed to be his working days and he was, therefore, entitled under the rules to get his due salary and allowances and that it might be paid to him. The relevant portion is quoted below:-”???? ??? ???????? ????? ????????? ???? ?????? ??????? ??? ?????????? ??? ???? ????? ????? ???? ??? ??? ???????????? ? ??????????? ?????? ?????? ???? ??????? ??¯’?? ????????? ??? ??????? ?????? ???? ??? ??? ???? ???? ??????? ???? ??????? ??????? ???? ???? ??????? ??? ??????? ??? ????? ??? ?????? ??? ???? ?????”?. But till date no action yet has been taken nor any money has been paid to the petitioner. Hence, the application. 6. Mr Fariduddin Ahmed, the learned Advocate-appearing for the petitioner submits that despite legal notice (Annexure-F) sent by the petitioner upon the respondent Nos. 6 and 7 to pay his entire arrear dues of Taka 1,89,272.24 only with interest and the legal opinion of the Government Pleader (Annexure-H-1), given to that effect, the respondents have not yet paid the same. (To be continued)He further submits that respondent Nos. 6 and 7 have been trying to frustrate the process of payment of his said dues for the period from 3-7-1997 to 1-8-2004 along with interest at the bank rate upto the date of payment thereof and thereby sought to render the order dated 25-2-2007 (Annexure-E) immigrating with malafide intention. Conversely, Mr AHM Mushfiqur Rahman, the learned Advocate appearing on behalf of the respondent No. 7 by filing affidavit-in-opposition submits that the said respondent on receipt of the memo dated 22-10-2007 issued by the Assistant Secretary, Ministry of Education had duly complied with the direction by depositing the said amount of money in favour of the government in local treasury (Sonali Bank Ltd.) dated 8-11-2007 (Annexure4(a) and that it was duly communicated to the respondent No.2 vide memo dated 9-1-2008 (Annexure-5) stating, inter alia,-“?????????? ???????? ???? ??????????? ???? ??? ?????? ??????? ????? ??? ??????? (??????) ???? ??? ???????? ????? ???????? ?????? ? ???? ?????? ???? ?????? ?????? ????????? ???????? ?????????? ?-?-?? ?????? ?????? ??????? ??? ??? ???? ??????? ?????? ???????? ???? ????? ????? ???????????? ???? ????? ???? ??????? ??? ???? ???? ??% ???? ?????? ??? ??? ????????? ???? ??? ???????? ???? ????? ?????????? ???? ??? ???? ??????????? ????????? ??????? ??? ????????? ?????? ????? ???? ??????? ?,??,???/?? ???? ?-??-???? ?????? ???????? ??????? ??????? ??? ?????? ?????? ????? ?????? ???? ???????? ???? ???”?. Admittedly, bringing some allegations the petitioner was suspended temporality from his respective post on 11-7-1999. Challenging which he instituted Other Class Suit No. 80 of 1999. Subsequently, the Governing Body took decision to withdraw the suspension order. Consequently, the suspension order was withdrawn and accordingly the petitioner also withdrew the said suit and joined in the respective post and while in suspention he drew 50% of his subsistence allowance. The balance 50% amounting to Taka 1,89,272.24 was kept in account of the College authority without any legal basis. The said act of the College authority was detected during the course of audit 26-12-2006 (Annexure-E), wherein it was ??????-“???? ??? ???????? ????, ??? ??????? (??????) ?? ???????? ?????? ? ???? ?????? ???? ?????? ?????? ????????? ???????? ?????????? ?-?-?? ?????? ?????? ??????? ??? ??? ???? ??? ???????? ???? ???????? ??/?? ?? ????? ????? ????????? ????? ?????????? ??? ????? ??????? ?????????? ?????? ????????? ???? ?????????? ??? ?? ??? ???? ?-?-?? ?????? ?????? ???? ?????? ????? ?????? ??????? ????? ?-?-?? ???? ??-?-?? ??????? ???? ??????? ???? ?????? ?????? ?????? ??????? ?????? ??š’ ????? ????? ???? ??? ????? ????? (?,??,???/?? ???? ??????? ??? ??? ???? ???? ????? ????? ???? ????????? ???? ?????????? ?????? ????? ?? ????? ??????? ????¯’? ??????? ???? ????? ??????????? ?”???? ?????? ??? ????”?. In view of the said position the College authority sought opinion of the Government Pleader. The Government Pleader in his legal opinion also opined to return the balance 50% of the MPO of the petitioner since the suspension order had been withdrawn by the College authority and the authority itself kept the said amount in its account, though not lawfully. However, the said amount was subsequently deposited in favour of the respondent-government by treasury challan with Sonali Bank Ltd. dated 8-11-2007 (Annexure-4-A). 9. In view of the above the petitioner is entitled to receive the balance amount which was unduly kept in the College account and are now lying in the Government Treasury. Accordingly, we find substance in the present Rule. 10. In the result, the Rule is made absolute. The respondents are hereby directed to take necessary steps to facilitate towards payment of Taka 1,82,272.24 only in favour of the petitioner which he is lawfully entitled to get in accordance with law within a period of 30 (thirty) days from the date of receipt of the copy of this judgment and order. There will be no order as to costs.
