Himachal pradesh act 017 of 1983 : Himachal Pradesh Lokayukta Act, 1983

Section 1. Short title, extent and commencement

1. Short title, extent and commencement.- (1) This Act may be called the Himachal Pradesh Lokayukta Act, 1983.

(2) It extends to the whole of the State of Himachal Pradesh.

(3) It shall be deemed to have come into force with effect from the 1st day of June, 1983.

Section 2. Definitions

2. Definitions.- An this Act, unless the context otherwise requires,-

(a) "action" means action by way of prosecution or otherwise taken on the report of the Lokayukta and includes failure to act, and all other expressions connoting action shall be construed accordingly;

(b) "allegation" in relation to a public scrvant means any affirmation that such public servant,-

(i) has knowingly and intentionally abused his position, as such to obtain any undue gain or favour to himself or to any other person, or to cause undue harm to any other person:

Provided that the service matters relating to persons referred to in sub-clauses (3) and (12) of clause (f) of section 2 shall be excluded therefrom; or

(ii) was actuated in the discharge of his functions as such public servant by corrupt motives; or

(iii) is guilty of corruption; or

(iv) is in possession of pecuniary resources or property disproportionate to his known source of income and such pecuniary resources or property is held by the public servant personally or by any member of his family or by some other person on his behalf.

Explanation.- For the purpose of this sub-clause ‘Family’ means husband, wife, sons and unmarried daughters living jointly with him or dependent on him;

(c) "Lokayukta" means a person appointed as a Lokayukta under section 3;

(d) "corruption" includes any act punishable under Chapter IX of the Indian Penal Code (45 of 1860) or the Prevention of Corruption Act, 1947 (2 of 1947);

(e) "Minister" means a member of the Council of Ministers, by whatever name called, for the State of Himachal Pradesh, that is to say, Chief Minister, Minister, Minister of State, Deputy Minister and shall also include the Chief Parliamentary Secretary and Parliamentary Secretary;

(f) "public servant" means a person, who is or has been-

(1) a Minister,

(2) a Member of the Legislative Assembly of Himachal Pradesh,

(3) appointed to public service or post in connection with the atiairs of the State of Himachal Pradesh,

(4) a Chairman, Vice-Chairman, Managing Director or a member of the Board of Directors or Chief Executive Officer, by whatever name called, of a Government company within the meaning of section 617 of the Companies Act, 1956 (1 of 1956) in which not less than fifty-one per cent of the paid up share capital is held by the State Government or any company which is a subsidiary of a company in which not less than fifty-one per cent of the paid up share capital is held by the State Government,

(5) a Mayor, Deputy Mayor, Councillor or Commissioner of a Municipal Corporation constituted by or under the Himachal Pradesh Municipal Corporation Act, 1930 (9 of 1980).

(6) a President, Vice-President, a member or Administrator of a Municipal Committee or Notified Area Committee constituted or deemed to have been constituted by or under the Himachal Pradesh Municipal Act, 1968 (19 of 1968),

(7) a Vice-Chancellor or Pro-Vice-Chancellor of a University established or deemed to have been established by or under any law of the State Legislature.

(8) a Chairman or Vicc-Chairman of the Zila Parishad or Panchayat Samiti constituted by or under the Himachal Pradesh Panchayati Raj Act, 1968 (19 of 1970).

(9) a President or Vice-President or member of any managing committee of an Apex Society incorporated by or under the Himachal Pradesh Co-operative Societies Act, 1965 (3 of 1969).

(10) a President, Vice-President, Managing Director or a member of the Board of Directors of such other Co-operative Societies incorporated by or under the Himachal Pradesh Co-operative Societies Act, 1968, 13 of 1969, as may be notified by the State Government from time to time,

(11) a Chairman, Vice-Chairman, Managing Director or the Chief Executive Officer, by whatever name called, of any statutory or non-statutory body incorporated or set up by the State Government;

(12) in the service or pay of a Government Company, Local Body, University, ??? Parisbad, Panchayat Sarniti Apex Society, Co-operative Society, statutory or non-statutory body referred to in sub-clauses. (4) to (11) of this clause, and

(13) holding any other post or office under the control of the State Government or an authority referred to in sub-clause (12) and notified by the State Government in the Official Gazette from time to time:

(g) "officer" means and includes,-

(i) the Chief Secretary, Secretary, Principal Secretary, Additional Secretary, Special Secretary, Joint Secretary, Deputy Secretary and Under Secretary to the Government of Himachal Pradesh, by whatever name he may be called;

(ii) the Head of the Department of the State Government: and

(iii) any other Government servant to be notified by the State Government;

(h) "competent authority" in relation to a public servant, means;-

Section 3. Appointment of Lokayukta

3. Appointment of Lokayukta.- (1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and scat, appoint a person to be known as the Lokayukta:

Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the High. Court of Himachal Pradesh and the Leader of the Opposition in the Legislative Assembly, or if there be no such leader, a person selected in this behalf by the members of the Opposition in that House in such manner as the Speaker may direct.

(2) A person shall not be qualified for appointment as Lokayukta, unless lie has been a Judge of the Supreme Court or a Chief Justice of a High Court in India.

(3) Every person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by him an oath or affirmation in the form set out for the purpose in the First Schedule.

Section 4. Lokayukta to hold no other office

4. Lokayukta to hold no other office.- The Lokayukta shall not be a member of Parliament or member of the Legislature of any State and shall not hold any other office or trust or profit or be an officer of a co-operative society and shall not be connected with any political party or carry on any business or practise any profession, and accordingly before he centers upon his office a person appointed as the Lokayukta shall-

(a) if he is a member of Parliament or of the Legislature of any State resign such membership: or

(b) if he holds any office of trust or profit, resign from such office; or

(c) if he is commented with any political party sever his connection with it, or

(d) if he is carrying on any business, sever his connection (short of divesting himself of ownership) with the conduct and management of such business; or

(e) if he is practising any profession, suspend practice of such profession.

Section 5. Term of office and other conditions of service of Lokayukta

5. Term of office and other conditions of service of Lokayukta.- (1) Every person appointed as the Lokayukta shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for re-appointment thereafter:

Provided that,-

(a) the Lokayukta may, by writing under his hand addressed to the Governor, resign his office and such resignation shall be effective as soon as it is tendered; and

(b) the Lokayukta may be removed from the office in the manner specified in section 6.

(2) A vacancy occurring in the office of the Lokayukta shall be filled in as soon as possible, but not later than six months from the date of occurrence of such vacancy.

(3) On ceasing to hold office, Lokayukta shall be ineligible for further employment in any other capacity under the Government of Himachal Pradesh for any employment under, or office in, any such Local Authority, Co-operative Society, Government Company, University, Corporation or a Corporate Body under the administrative control of the Government of Himachal Pradesh as is referred to in sub-clauses (4) to (11) and sub-clause (13) of cluase (f) of section 2.

(4) There shall be paid to the Lokayukta such salary as is specified in the Second Schedule.

(5) The allowances payable to, and other conditions of service of Lokayukta shall be such as may be prescribed:

Provided that in prescribing the allowances payable to, and other conditions of service of, the Lokayukta, regard shall be had to the allowances payable to, and other conditions of service of a serving Judge of the Supreme Court or the Chief Justice of a High Court, as the case may be:

Provided further that the allowances payable to, and other conditions of service of, the Lokayukia shall not be varied to his disadvantage after his appointment.

(6) The salaries and allowances payable to, or in respect of, the Lokayukta shall he expenditure charged an the Consolidated Fund of the State.

Section 6. Removal of Lokayukta

6. Removal of Lokayukta.- (1) The Lokayukta shall not be removed from his office except by an order of the Governor passed after an address by the Himaclial Pradesh Legislative Assembly, supported by a majority of the total membership of the Legislative Assembly and by a majority of not less than two-thirds of the members thereof, present and voting, has been presented to the Governor in the same session for such removal on the ground of proved misbehaviour or incapacity.

(2) The procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of the Lokayukta under sub-section (1) shall be as provided in the Judges (Inquiry) Act, 1968 (51 of 1968) in relation to the removal of a Judge and, accordingly, the provisions of that Act shall, subject to necessary modifications, apply in relation to the removal of the Lokayukta as they apply in relation to the removal of a Judge.

Section 7. Matters which may be inquired into by the Lokayukta

7. Matters which may be inquired into by the Lokayukta.- Subject to the provisions of this Act on receiving: a complaint the Lokayukta may proceed to enquire into the allegations made against a public servant.

Section 8. Matters not subject to inquiry

8. Matters not subject to inquiry.- The Lokayukta shall not inquire into any matter,-

(a) in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850: (37 of 1850) or

(b) which has been referred for inquiry under the Commission of Inquiry Act, 1952 (60 of 1952); or

(c) which is not connected with the discharge of functions as public servant of the person against whom allegation is made; or

(d) relating to an allegation against a public servant, if the complaint is made after expiration of a period of ten years from the date on which the conduct complained against is alleged to have been committed.

Section 9. Provisions relating to complaints

9. Provisions relating to complaints.- (1) Any person may make a complaint under this Act to the Lokayukta.

(2) Every complaint involving an allegation shall be made in such form as may be prescribed. The complainant shall swear an affidavit in such form as may be prescribed before the Lokayukta or any officer authorised by the Lokayukta in this behalf.

(3) Notwithstanding anything contained in section 10 or any other provision of the Act, every person who wilfully or maliciously makes any false complaint under this Act shall, on conviction, be punished with rigorous imprisonment which may extend to two years or with fine which may extend to five thousand rupees or with both and the court may order that out of the amount of fine, such sum as it may deem fit, be paid by way of compensation to the person against whom such complaint was made:

Provided that no court shall take congnizance of an offence punishable under this section except on uncomplaint made by or under the authority of the Lokayukta:

Provided further that the complaints made by or under the authority of the Lokayukta shall be exclusively tried by a Court of Sessions, which may take cognizance of the offence on such complaints without complaints being committed, to it, anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) notwithstanding:

Provided further that the complaint made under the signature and seal of the Lokayukta shall be deemed as formally proved and the evidence of the Lokayukta shall not be necessary for the purpose.

(4) If the Lokayukta is satisfied-

(a) that all or any of the allegations made in the complaint have or has been substantiated either wholly or partly; and

(b) that having regard to the expenses incurred by the complainant in relation to the proceedings in respect, of such complaints and all other relevant cricumstances of the case, the complainant deserves to be compensated;

the Lokayukta shall determine a reasonable amount which shall be paid to the complainant by way of such compensation and the State Government shall pay the amount so determined to the complainant.

Section 10. Procedure in respect of inquiry

10. Procedure in respect of inquiry.- (1) Subject to the provisions contained in sub-section (2), the Lokayukta shall, in each case before it, decide the procedure to be followed for making an inquiry and in so doing ensure that the principles of natural justice are satisfied.

(2) Every inquiry under the Act shall, unless the Lokayukta for reasons to be recorded in wirting determines otherwise, be conducted in camera.

Section 11. Evidence

11. Evidence.- (1) Subject to the provisions of this section, for the purpose of any inquiry, the Lokayukta,-

(a) may require any public servant or any other person, who, in his opinion, is able to furnish information or produce documents relevant to such inquiry, to furnish any such information or produce any such document;

(b) shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:-

(i) summoning and enforcing the attendance of any person and examining him on oath,

(ii) requiring the discovery and production of any document,

(iii) receiving evidence on affidavits,

(iv) requisitioning any public record or copy thereof from any court or office, and

(v) issuing commissions for the examination of witnesses or documents:

Provided that no person, without the prior permission of the appropriate Government shall be required or authorised by virtue of the provisions contained in this Act to furnish any such information or answerany such question or produce so much of any document as might involve the disclosure of any information or production of any document which is punishable under the provisions of the Official Secrets Act, 1923 (1923 of 1923).

(2) Any proceeding before the Lokayukta shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).

(3) The Lokayukta shall be deemed to be court within the meaning of the Contempt of Courts Act, 1971 (70 of 1971).

Section 12. Reports of Lokayukta

12. Reports of Lokayukta.- (1) If, after inquiry in respect of a complaint, the Lokayukta is satisfied:-

(a) that no allegation made in the complaint has been substantiated either wholly or partly, be shall close the case and intimate the complainant, the public servant and the competent authority concerned accordingly.

(b) that all or any of the allegations made in the complaint have or has been substantiated ??? wholly or partly, he shall, by report, in writing, communicate his findings and recommendations to the competent authority and intimate the complainant and the public servant concerned about his having made the report.

(2) The competent authority shall examine the report forwarded to under clause (b) of sub-section (1) and communicate to the Lokayukta, within three months of the date of receipt of the report, the fiction taken on the basis of the report.

(3) If the Lokayukta is satisfied with the action taken, on the basis of his report, under clause (b) of sub-section (1), he shall close the case and intimate the complainant, the public servant and the competent authority concerned accordingly, but where he is not so satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and intimate the complainant, the public servant and the competent authority concerned about his having made such report.

(4) The Lokayukta shall present annually to the Governor a consolidated report on the administration of this Act.

(5) At the commencement of the session of the State Legislative Assembly after the expiry of ninety days from the presentation of the special report under sub-section (3) or the annual report under sub-section (4) or earlienthereto, the Governor shall cause the same together with an explanatory memorandum to be laid before the State Legislative Assembly.

Section 13. Staff of Lokayukta

13. Staff of Lokayukta.- fl) The Lokayukta may appoint, or authorise any officer subordinate to the Lokaynkta to appoint officers and other employees to assist the Lokayukta in the discharge of his functions under this Act.

(2) The categories of officers and employees who may be appointed and other conditions of service and the administrative powers of the Lokayukta Shall be such us may be prescribed after consultation with the Lokayukta.

(2) Without prejudice to the provisions of sub-section (1), the Lokayukta may for the purpose of conducting enquiries under this Act utilise the services of:-

(i) any officer or investigation agency of the State or the Central Government with the concurrence of that Government; or

(ii) any other person or agency.

Section 14. Secrecy of information

14. Secrecy of information.- (1) Any information, obtained by the Lokayukta or members of his staff in the course of, or for the purposes of any investigation under this Act, and any evidence recorded or collected in connection with such information, shall be treated as confidential find, notwithstanding anything contained in the Evidence Act, 1872, (1 of 1872) no court shall be entitled to compel the Lokayukta or any public servant to give evidence, reliting to such information, or produce the evidence so recorded or collected.

(2) Nothing in sub-section (1) shall apply to the disclosure of any information or particulars,-

(a) for purposes of the inquiry or any report to be made thereon or for any action or proceedings to be taken on such report; or

(b) for purposes of any proceeding for an offence under the Official Secrets Act, 1923 (19 of 1923) or an offence of giving or fabricating false evidence under the Indian Penal Code (45 of 1860) or under sub-sections (1) and (2) of section 11; or

(c) for such other purposes as may be prescribed.

Section 15. Protection

15. Protection.- No suit, prosecution or other legal proceeding shall be against the Lokayukta or against any officer employee, agency or person referred to in section 13 in respect of anything which is in good faith done or intended to be done under this Act.

Section 16. Power to make rules

16. Power to make rules.- (1) The State Government may, by notification, make rules for the purpose of carrying into effect the provisions of this Act.

(2) Every rule made under this Act shall he laid, as soon as may be after it is made, before the State Legislature while it is in session for a total period of fourteen days which may be comprised in one session or two successive sessions, and if before the expiry of the session in which it is so laid, or the session immediately following, the House agrees in making any modification in the rule or the House agrees that the rule should not be made, and notify such decision in the Official Gazette, the rule shall from the date of publication or such notification, have effect only in such modified form or be or no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 17. Removal of doubts

17. Removal of doubts.- For the removal of doubts, it is hereby declared that nothing in this Act shall be construed as authorising the Lokayukta to investigate any action which is taken by or with the approval of,-

(a) the Chief Justice or any Judge of the High Court or an officer the control whereof vests in the High Court by virtue of Article 235 of the Constitution:

(b) any officer or servant of any civil or criminal court in India;

(c) the Accountant General for Himachal Pradesh:

(d) the Chief Election Commissioner, the Election Commissioners and the Regioual Commissioners referred to in Article 324 of the Constitution and the Chief Electoral Officer, Hinmclial Pradesh State: and

(e) the Chairman or a member of the Himachal Pradesh Public Service Commission.

Section 18. Savings

18. Savings.- The provisions of this Act shall be in addition to the provisions of any other enactment or any rule of law under which any remedy by way of appeal, revision, review or in any other manner is available to a person making a complaint under this Act in respect of any action, and nothing in this Act shall limit or affect the right of such person to avail of such remedy.

Section 19. Power to recall complaint spending before the Director of Vigilance

19. Power to recall complaint spending before the Director of Vigilance.- (1) Where the Lotaynkta decides to inquire into a complaint against a public servant, he may ascertain from the Director of Vigilance whether any complaint containing substantially similar allegations against the said public servant is pending in the Directorate of Vigilance.

(2) If the Lokayukta, on examination of the record referred to in sub-section (1) decides to inquire into the matter himself, he shall inform the Director of Vigilance accordingly and the complaint, wholly or partly, as the case may be, shall stand transferred to him for inquiry under the provisions of this Act.

(3) Whenever the Lokayukta decides not to inquire into the matter himself and returns the complaint to the Director of Vigilance, the latter shall investigate the complaint returned to him and dispose of the same as if this Act has not been enacted.

Section 20. Repeal and savings

20. Repeal and savings.- (1) The Himachal Pradesh Lokayukta Ordinance, 1983 (3 of 1983), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done, or taken, under the corresponding provisions of this Act, as if this Act had come into force on the day on which such thins was done or action was taken.