HARYANA
GOVT. GAZ. (EXTRA), JAN. 27, 2003
(MARCH 7,
1924 SAKA)
-----------------------------------------------------------------------------------
PART I
LEGISLATIVE DEPARTMENT
Notification
The 27th January, 2003
No. Leg. 1/2003: -The following Act of the Legislature of the State
of Haryana received the assent of the President of India on the 6th
January, 2003, and is hereby published for general information:-
Haryana Act No. 1 of 2003
THE HARYANA LOKAYUKTA ACT, 2002
AN
ACT
to provide for the appointment and
functions of a Lokayukta
for inquiry and investigation into the allegations and
grievances against public servants and
for
matters connected therewith.
BE it enacted by the
Legislature of the State of Haryana in the Fifty-third Year of the Republic of
India as follows: -
Short title, Extent and Commencement
1. (1) This Act may be called the Haryana Lokayukta Act, 2002.
(2) It extends to the whole of the State of Haryana.
(3) It shall come into force on such
date as the State Government may, by notification in the Official Gazette,
appoint.
Definitions
2. In
this Act, unless the context otherwise requires,-
(a) “act”
means administrative action taken by a public servant by way of decision,
recommendation or finding or in any other manner and shall include willful
failure to act, and all other expressions relating to such action shall be
construed accordingly;
(b) “allegation”
in relation to a public servant 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 hardship or harm to any other
person;
(ii) was
actuated in the discharge of his functions as such public servant by personal
interest, or improper or corrupt motives;
(iii) is
guilty of corruption, lack of integrity in his capacity as such public servant;
or
(iv)
is in possession of
pecuniary resources or property disproportionate to his known source of income
and such pecuniary resources or property held by the public servant personally or
by any member of his family or by some other persons on his behalf;
(c ) “Chief
Minister” means head of the Council of Ministers;
(d)
“competent authority”
in relation to a complaint against-
(i) Chief
Minister : The
Governor in his discretion;
(i)
(ii) All other Public Servants: Chief
Minister;
(e) “complaint”
means a complaint wherein act of any allegation or grievance is alleged to have
been committed by a public servant;
(f) “corruption”
includes any act punishable under chapter IX of the Indian Penal Code, 1860 or
the Prevention of Corruption Act, 1988, or under any law for the time being in
force for prevention of corruption;
(g)
“Governor” means the
Governor of the State of Haryana;
(h)
“grievance” means the
claim by a person that a right to which he is entitled to is denied to him
or is unreasonably delayed by the act
of omission or commission of a public
servant or the act complained of amounts to mal-administration;
(i)
“Lokayukta” means a
person appointed as a Lokayukta under section 3;
(j)
“mal-administration”
means an act, which is unjust, unfair, unreasonable, oppressive, improperly
discriminatory or not supported by law;
(k)
“Minister” means a
member of the Council of Ministers, other than the Chief Minister by whatever
name called, for the State of Haryana,
that is to say, Cabinet Minister, Minister of State, Deputy Minister and
shall also include the Chief Parliamentary Secretary and Parliamentary
secretary;
(l)
“prescribed” means
prescribed by rules made under this Act;
(m)
“public servant” includes
a person defined in section 21 of the Indian Penal Code, 1860 and also means a
person, who is or has been-
a.
Chief Minister;
b.
a Minister;
c.
a Member of the
Legislative Assembly of Haryana including the Speaker and the Deputy Speaker of Haryana legislative Assembly;
d.
a Chairman,
Vice-Chairman or member of the Board of Directors, by whatever name called, of
a Government company within the meaning of section 617 of the Companies Act,
1956, in which not less than fifty-one percent of the paid up share capital is
held by the State Government.
e.
a Chairman,
Vice-Chairman or member, by whatever name called, of any statutory or
non-statutory body incorporated, registered or constituted by the State
Government.
f.
a Mayor, Senior Deputy
Mayor, Deputy mayor of a Municipal Corporation constituted or deemed to have
been constituted by or under the Haryana Municipal Corporation Act, 1994;
g.
a President,
Vice-President of a Municipal Committee or Municipal Council constituted or
deemed to have been constituted by or under the Haryana Municipal Act, 1973;
h.
a President,
Vice-President of a Zila Parishad and a Chairman, Vice-Chairman of a Panchayat
Samiti constituted by or under the Haryana Panchayati Raj Act, 1994;
i.
a President or
Vice-President of any managing committee of a society incorporated or
registered under the law relating to cooperative societies for the time being
in force;
j.
a President, Vice-President, Managing
Director of the Board of Directors of such other cooperative societies incorporated
or registered by or under law relating to cooperative societies for the time
being in force;
k.
a Vice-Chancellor or a
pro Vice-Chancellor or Registrar of a University;
(n)
“State” means the state
of Haryana;
(o)
“State Government”
means the Government of the State of Haryana.
Appointment of Lokayukta
3. (1) For the purpose of conducting investigations in
accordance with the provisions of this Act, the Governor shall, by warrant
under his hand and the seal, appoint a person to be known as the Lokayukta:
Provided that the Lokayukta shall be appointed on the
advice of the Chief Minister who shall consult the Speaker of Haryana
Legislative Assembly, Leader of Opposition and the Chief Justice of India in
case of appointment of a person who is or has been a Judge of the Supreme Court
or Chief Justice of the High Court, and the Chief Justice of the Punjab and
Haryana High Court in case of appointment of a person who is or has been a
Judge of a High Court:
Provided further that the result of consultations hall
have persuasive value but not binding on the Chief Minister.
(2) A notification by the State Government about the
consultation having been held as envisaged in sub-section (1) shall be
conclusive proof thereof.
(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 Schedule.
Qualifications for Lokayukta
4. A person shall not be qualified
for appointment as Lokayukta unless he is or has been a Judge of the Supreme
Court or a Chief Justice or a Judge of a High Court in India.
Lokayukta to hold no other Office
5. The Lokayukta shall not be a
member of Parliament or member of Legislature of any State and shall not hold
any office of profit or trust or carry on any business or practice any
profession or be connected with any political party and accordingly, before he
enters upon his office 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 profit or trust, resign from such office; or
(c) if
he is connected with any political party, sever his connection in 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 practicing any
profession, suspend practice of such profession.
Term of Office and other conditions of
service of Lokayukta
6. (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:
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 accepted; and
(b)
the Lokayukta may be
removed from the office in the manner specified in section 7.
(2) A
vacancy occurring in the office of the Lokayukta shall be filled in within
three months.
(3)
On ceasing to hold office, the Lokayukta shall be ineligible for
reappointment as Lokayukta or any other employment in any capacity under the
State Government or any local authority, cooperative society, government
company, university, statutory corporation under the administrative control of
the State Government.
(4) The
salary, allowances payable to, and other conditions of service of Lokayukta
shall be same as may be available from time to time to a sitting Judge of the
Supreme Court or Chief Justice or Judge of the High Court, as the case may be,
in accordance with the office held by him:
Provided
that the salary, allowances and other privileges available to the Lokayukta shall
not be negotiable:
Provided further that the allowances payable and
other conditions of service of the Lokayukta shall not be varied to his
disadvantage after his appointment.
(5) The
salaries and allowances payable to, or in respect of, the Lokayukta shall be
the expenditure charged on the Consolidated Fund of the State.
Removal of Lokayukta
7. (1) The Lokayukta shall not be removed from his office except
by an order of the Governor passed after an address by the Haryana 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 grounds of proved misconduct or incapacity.
(2) The procedure for the presentation of an address and for
the investigation and proof of the misconduct, or incapacity of the Lokayukta
under sub-section (1) shall be as provided in the Judges (Inquiry) Act, 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.
Matters which may be inquired into by
Lokayukta
8. (1) Subject to the provisions of this
Act, the Lokayukta may on receipt of a reference from Government proceed to
inquire into the allegations or the grievances made against a public servant.
(2) The Lokayukta may
inquire into any act or conduct of any person other than a public servant in so
far as he considers it necessary so to do for the purpose of his enquiry into
any allegation of misconduct against a public servant provided that the
Lokayukta shall give such a person reasonable opportunity of being heard and to
produce evidence in his defence.
9. The Lokayukta shall not inquire
into any matter -
(a)
in respect of which an
inquiry has been ordered under the Public Servants (Inquiries) Act, 1850; or
(b)
which is not connected
with the discharge of functions as public servant of the person against whom
allegation is made; or
(c)
relating to “grievance
of mal-administration”, any administrative act involving the exercise of
discretion except where he is satisfied that the elements involved in the
exercise of discretion were absent to such an extent that discretion would not
be regarded as having been properly exercised or was exercised for corruption.
Provisions relating to complaints
10.
(1) Subject to the provisions of this Act, a complaint may be
made under this Act to the Lokayukta –
(a)
in case of grievance by
the person aggrieved;
(b)
in case of allegation
by any person:
(c)
Provided that where the
person aggrieved is dead or, is for any reason, unable to act for himself the
complaint may be made by any person who in law represents his estate or, as the
case may be, by any person permitted to act on his behalf.
(2) Every complaint involving an allegation
or grievance shall be made in such form, and in such manner and shall be accompanied
by such affidavit as may be prescribed.
(3) Notwithstanding anything contained in
this Act or any other law for the time being in force, any letter written to
the Lokayukta by a person in police custody or in a jail or in any asylum or
any other custodial place, shall be forwarded to the Lokayukta unopened and
without delay by the police officer or the person incharge of such jail, asylum
or any other custodial place. If the
Lokayukta is satisfied, that it is necessary so to do, treat such letter as a
complaint made in accordance with the provisions of sub-section (2).
Provisions for holding preliminary inquiry.
11.
The Lokayukta on receipt of a
complaint may before proceeding to investigate such complaint or case, make
such preliminary inquiry or direct any other person to make such preliminary
inquiry as he deems fit for ascertaining whether there exists reasonable ground
for conducting the investigation. If on
such preliminary inquiry, he finds that there exists no such ground he shall record
a finding to that effect that thereupon the matter shall be closed and the
complainant shall be informed accordingly.
Procedure in respect of inquiry
12.
(1) Subject to the provisions contained in sub-section (2),
the Lokayukta shall devise his own procedure for conducting inquiry or
investigation but in so doing shall ensure that the principles of natural
justice are satisfied.
(2) The Lokayukta shall complete the inquiry within one year.
(3) Every inquiry under the Act shall, unless the Lokayukta
for reasons to be recorded in writing determines otherwise, be conducted in
camera.
Power to summon record
13. The Lokayukta shall have the power to
summon record of the State Government, local authority, corporation, government
company, society, university, any college affiliated to or constituent of a
university or from any other persons in connection with any inquiry or
investigation against public servant undertaken by him:
Provided that the State
Government may withhold the production of any record or document relating to
affairs of the State on grounds of security or in public interest in accordance
with the provisions of the Indian Evidence Act, 1872, or the Indian Official
Secrets Act, 1923.
Evidence
14.
(1) Subject to the provisions of this section, for the
purpose of any inquiry or investigation, the Lokayukta or any person authorized
by him in this behalf: -
(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)
may enter upon any land
and survey, demarcate or prepare a map of the same;
(c)
shall have all the
powers of civil court while trying a suit under Code of Civil Procedure, 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 answer any
such question or produce so much of any document as might involve the
disclosure of any information or
production of any documents which is punishable under the provisions of
the Official Secrets Act, 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 Indian Penal Code, 1860.
Power for search and seizure
15.
(1) Where in consequence of information
in his possession or after such inquiry as he thinks necessary, the Lokayukta:
-
(a)
has reason to believe
that a person-
(i)
to whom a summons or
notice under this Act, has been or might be issued, will not or would not
produce or cause to be produced any property, document or thing which will be
necessary or useful or relevant to any inquiry or other proceedings to be
conducted by him;
(ii)
is in possession of any money, bullion, jewellery,
or other valuable article or thing and such money, bullion, jewellery or other
valuable article or thing represents either wholly or partly income or property
which has not been disclosed to the authorities for the purpose of any law or
rule in force which requires such disclosure to be made; or
(b)
considers that the
purposes of any inquiry or other proceedings to be conducted by him will be
served by a general search or inspection,
may
issue a search warrant and he or any person authorised by him may, by that
search warrant-
(I)
enter and search any
building or place where he has reason to suspect that such property, document,
money, bullion, jewellery or other valuable article or thing is kept;
(II)
break open the lock of
any door, box, locker, safe, almirah or other receptacle for exercising the
powers conferred by sub-clause
(i)
where the keys thereof
are not available;
(III)
seize any such
property, document, money, bullion, jewellery or other valuable article or
thing found as a result of such search;
(IV) place
a mark of identification on any property or document or make or cause to be
made extracts or copies therefrom; or
(IV)
make a note or an
inventory of any such property, document, money, bullion, jewellery or other
valuable article or thing.
(2) The
provisions of section 100 of the Code of Criminal Procedure, 1973, shall, so
far as may be, apply to searches under sub-section (1).
(3) A
warrant issued under sub-section (1) shall, for all purposes, be deemed to be a
warrant issued by a court under section 93 of the Code of Criminal Procedure,
1973.
Punishment for false and
malicious complaints
16. Notwithstanding anything contained in
this Act, any person who wilfully or maliciously makes any false complaint
under this Act, shall, on conviction, be punished with rigorous imprisonment
which may extend to three years or with fine which may extend to ten 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 cognizance of an offence punishable under this section
except on a complaint made by or under the authority of the Lokayukta:
Provided
further that the complaint 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 in such complaint without the complaint being committed to it,
notwithstanding anything contained in the Code of Criminal Procedure, 1973.
Reports of Lokayukta
17. (1) If,
after inquiry in respect, of a complaint, the Lokayukta is satisfied-
(a)
that no allegation or
grievance has been substantiated, he shall close the case and intimate the
competent authority concerned accordingly;
(b)
that all or any of the
allegations or grievances have or has been substantiated either wholly or
partly, he shall, by report in writing, communicate his findings, appropriate
recommendations and suggestions to the competent authority and intimate the complainant
and the public servant concerned about his having made the report.
(2) The
competent authority shall cause the report to be examined and communicate to
the Lokayukta within three months of the date of receipt of the report, the action
taken thereon.
(3) The
Lokayukta shall present to the Governor a consolidated annual report on the
administration of this Act.
(4) The
Governor shall cause to be laid on the table of the State Legislature a copy of
the annual report referred to in sub-section (3) above within six months of its
receipt along with an explanatory memorandum indicating the action taken
thereon, and the reasons for not taking action in a given case.
Power to issue interim direction
18. (1) The Lokayukta may, after receipt of
a complaint, issue such interim direction as the case may warrant so as
avoiding grave injustice.
(2) The
competent authority shall deal with the interim direction in the same manner as
provided for final direction.
Staff of Lokayukta
19. (1) The Lokayukta may appoint in
consultation with the State Government, such officers and staff as he may
consider appropriate for the discharge of functions under this Act.
(2) The categories of officers and staff
who may be appointed under sub-section (1) above and their conditions of
service shall be such as may be prescribed in consultation with the Lokayukta.
Utilization of services
of other person
20. (1) Without prejudice to the provisions
of sub-section (10 of section 19, the Lokayukta may, in consultation with the
State Government, for the purpose of conducting any inquiry or investigation
under this Act, utilize the services of any officer or investigating agency of
the State Government, or for reasons to be recorded in writing, of any other
person or agency.
(2) Any officer, agency or persons whose
services have been sought under sub-section (1) may-
(a) summon and enforce the attendance of
any person and examine him;
(b) require the production of any
document; and
(c)
requisition any public record or
copy thereof from any office.
(3) The officer, agency or person whose
services have been sought under sub-section (1) shall enquire into the matter
and submit a report to the Lokayukta within such period as may be specified by
him in this behalf.
Secrecy of information
21. (1) Any information, obtained by the
Lokayukta or members of his staff in the course of, or for the purposes of, any
inquiry or investigation under this Act and any evidence recorded or collected
in connection with such information, shall
be treated as confidential and, notwithstanding anything contained in
the Evidence Act, 1872, no court shall be entitled to compel the Lokayukta or
any public servant to give evidence relating 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 proceedings for an offence under the Official Secrets Act,
1923, or an offence of giving or fabricating false evidence under the Indian
Penal Code, 1860, or under sub-sections (1) and (3) of section 12 of this Act;
or
(c ) for
such other purposes as may be prescribed.
Protection of action
taken in good faith
22. No
suit, prosecution or other legal proceedings shall lie against the Lokayukta or
against any officer or employee, agency or person acting on his behalf in
respect of anything which is in good faith done or intended to be done under
this Act.
Powers to call for
matters pending before State Government
23. (1) Where the Lokayukta decides to
inquire into a complaint against a public servant, he may ascertain from the
State Government whether any complaint containing substantially similar
allegations against the said public servant is under investigation, and if so,
he may call for the record thereof.
(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 State Government 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 he shall return the complaint to the State
Government.
Other remedies not barred
24. The institution of any inquiry or proceedings
under this Act shall be no bar to a person seeking a remedy available under any
other law, for the time being in force.
Repeal ,saving and
overriding effect
25. (1) The Haryana Lokayukta act, 1997
(Haryana Act No. 21 of 1998) and the Haryana Lokayukta (Repeal) Ordinance, 1999
(Haryana Ordinance No. 4 of 1999), are hereby repealed.
(2) Notwithstanding anything contained
in any contract, law or rules made thereunder, the Lokayukta shall not be
entitled to any compensation for the unexpired period of his tenure.
(3) All matters pending before the
Lokayukta before the repeal of the Haryana Act No. 21 of 1998 shall be inquired
into by the Lokayukta under this Act.
Power to make rules
26. (1) the State Government may, by
notification, in the Official Gazette, make rules for carrying out the purposes
of this Act.
(2) Every rule made under this Act shall
be laid, as soon as may be, after it is made, before the State Legislature
while it is in session for a total period of ten days which may be comprised in
one session or in two or more successive sessions and if, before the expiry of
the session in which it is so laid or the successive sessions and if, before
the expiry of the session in which it is so laid or the successive sessions
aforesaid, the State Legislature agrees in making any modification in the rule
or the State Legislature agrees that the rule should not be made, the rule
shall thereafter have effect only in
such modified form or be of no effect,
as the case may, be, however, that any such modification or annulment
shall be without prejudice to the validity of anything previously done under
that rule.
SCHEDULE
[See section 3(3)]
I,_____________________________, having been
appointed as Lokayukta of Haryana, do
swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as
by law established and I will, duly and faithfully and to the best of my
ability, knowledge and judgement, perform the duties of my office without fear
or favour, affection, bias or ill-will.
R.S.MADAN,
Secretary to Government Haryana,
Legislative Department.