NEYYATTINKARA URBAN CO-OP BANK Vs. STATE COMMISSIONER

JUDGEMENT

(1.) The above writ petition is filed seeking to quash Ext.P4, whereby a direction was issued by the 1st respondent to appoint the 2nd respondent as peon in a permanent vacancy, within 30 days on receipt of a copy of the order.

(2.) The petitioner is an Urban Co-operative Bank coming under the regulatory regime of Banking Regulation Act and Kerala Cooperative Societies Act, 1969. The 2nd respondent, who is a physically disabled person, was employed as a peon on a daily wage basis in the petitioner bank. Later, his service was terminated. Thereupon, Ext.P1 petition was filed by the 2nd respondent before the 1st respondent seeking a direction to the petitioner bank for reinstatement in service. The 1st respondent called upon the petitioner for a hearing, and the petitioner submitted Ext.P3 written submission before the 1st respondent. The 2nd respondent produced a letter issued by the Assistant Registrar of Co-operative Societies (General) addressed to the petitioner to consider the 2nd respondent in any vacancy arising in future on humanitarian grounds. Thereafter by Ext.P4 order the 1st respondent directed the petitioner to appoint the 2nd respondent as peon on regular basis in the service of the petitioner within 30 days from the date of receipt of copy of the order and in case the post of peon is absent in the petitioner bank, he shall be accommodated on supernumerary basis and the action taken report shall be filed as contemplated under Sec. 81 of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as ' the Act, 2016'). The petitioner would submit that as part of the installation of the core-banking solution, compilation of the data of existing customers of the bank was required, for which Data Entry Operators were engaged on a daily wage basis. The 2nd respondent made an application, and he was engaged as a Data Entry Operator on a daily wage basis. The entry of data of customers of the bank was completed in the year 2019, and the payment of daily wages to the tune of Rs.11,79,450.00 was objected to in the audit. Thereupon, the Board of Directors of the bank, as per Ext.P8 resolution, decided to disengage the 10 daily rated employees from 31/8/2019. One of the daily wage employees, thus disengaged, approached this Court by filing W.P.(C) No.34670/2019 and this Court, as per Ext.P9 judgment, disposed of the writ petition relegating the petitioner therein to approach the Co-operative Arbitration Court under Sec. 69 of the Kerala Cooperative Societies Act 1969 for redressal of her grievance. The petitioner would submit that Ext.P4 is vitiated by total lack of jurisdiction and the Urban Co-operative Bank will not come under the definition of 'appropriate Government' as defined under Sec. 2(b) of the Act, 2016 and reliance was placed on the judgment in Thalappalam Service Co-operative Bank Ltd. v. State of Kerala [2013 (4) KLT 232(SC)] in support of the said contention. Therefore, the petitioner sought interference on Ext.P4 order passed by the 1st respondent.

(3.) The 2nd respondent has filed a detailed counter affidavit. The learned counsel for the 2nd respondent would submit that in Ext.P4 a direction was issued to the petitioner bank to submit an action taken report as contemplated under Sec. 81 of the Act, 2016 and going by Sec. 3 of the Act, 2016, no person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. Going by Sec. 80 of the Act, 2016, which defines the functions of State Commissioner includes to identify, suo motu or otherwise, provision of any law or policy, programme and procedures, which are inconsistent with this Act, and recommend necessary corrective steps and also to enquire, suo motu or otherwise deprivation of rights of persons with disabilities and safeguards available to them in respect of matters for which the State Government is the appropriate Government and take up the matter with appropriate authorities for corrective action. Relying on the judgment of the Apex Court in Vikash Kumar v. UPSC and Ors., [2021 SCC Online SC 84], the learned counsel for the 2nd respondent would contend that the State, as also private parties, are mandated to provide reasonable accommodation to persons with disabilities and therefore the contention of the bank that they will not come under the purview of Act 2016 is without any basis. The learned counsel would further contend that after the termination from service, a representation was submitted before the Assistant Registrar (General), Neyyattinkara. As per Ext.R2(a), a direction was issued to the petitioner to consider regularisation of the 2nd respondent in the upcoming vacancy on humanitarian grounds. The Joint Registrar (General) Thiruvananthapuram has also, as per Ext.R2(b), issued similar directions. In defiance to Exts.R2(a) and R2(b) directions, no steps were taken to accommodate the 2nd respondent in a regular vacancy. It is further submitted by the learned counsel appearing for the 2nd respondent that the contention of the learned counsel for the petitioner that the Co-operative Bank will not come within the purview of the 'appropriate Government' obtaining in Sec. 2(b) of the Act, 2016 and the reliance placed by the learned counsel for the petitioner in Thalappalam Service Cooperative Bank Ltd. case cited supra is without any basis. The issue involved in that case is as to whether the bank comes within the definition of 'public authority' as defined in the provisions of the Right to Information Act, 2005, wherein the Court has held that the Co-operative Bank will not come within the definition of 'public authority'. But the learned counsel for the 2nd respondent would submit that the applicability of the Act, 2016 is not restricted to the Government establishment alone, and reliance was placed on Sec. 2(i), which defines 'establishment' as including a Government and a private establishment. Therefore, the learned counsel for the 2nd respondent would submit that the petitioner bank is also liable to implement the provisions of the Act, 2016. A reference was also made to the Rights of persons with Disabilities Rules, 2017(hereinafter referred to as 'the Rules, 2017') and contended that it is the duty of the head of the establishment to ensure that the provision of sub-sec. (3) of Sec. 3 of the Act 2016 are not misused to deny any right or benefit to persons with disabilities covered under the Act 2016 and if the head of the Government establishment or a private establishment employing twenty or more persons receives a complaint from an aggrieved person regarding discrimination on the ground of disability, he shall initiate action in accordance with the provisions of the Act and if a complaint is preferred by the aggrieved person before the State Commissioner for persons with disabilities, the complaint shall be disposed of within the time limit provided as per the Rules. The learned counsel, relying on Rule 8 of Rules, 2017, submits that every establishment shall publish an equal opportunity policy for persons with disabilities. Having not done so, the learned counsel appearing for the 2nd respondent would submit that the 1st respondent rightly interfered in the matter and issued Ext.P4 direction, and the same is not liable to be interfered with.