The
Kerala Lok Ayukta Act, 1999
THE
KERALA LOK AYUKTA ACT, 1999
(Act 8 of 1999 as amended by Act 2 of 2000)
An
Act to make provision for the appointment and functions
of certain authorities for making enquiries into any action
(including any omission and commission in connection with
or arising out of such action) relatable to matters specified
in List II or List III of the Seventh Schedule to the Constitution
of India taken by or on behalf of the Government of Kerala
or certain public authorities in the State of Kerala in
certain cases and for matters connected therewith or ancillary
thereto.
Preamble.-
WHEREAS it is expedient to make provision for the appointment
and functions of certain authorities for making enquiries
into any action (including any omission and commission in
connection with or arising out of such action)relatable
to matters specified in List II or List III of the Seventh
Schedule to the Constitution of India,taken by or on behalf
of the Government of Kerala of certain public servants in
the State of Kerala in certain cases and for matters connected
therewith or ancillary thereto;
BE
it enacted in the Fiftieth Year of the Republic of India
as follows:-
1.
Short title and commencement.-
(1) This Act may be called the Kerala Lok Ayukta Act, 1999.
(2) It shall be deemed to have come into force on the 15th
day of November, 1998.
2.
Definitions.- In this Act, unless
the context otherwise requires,-
(a)
"action" means any action including administrative
action taken by way of decision, recommendation or finding
or in any other manner and includes willful failure or omission
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 abused
his position as such public servant to obtain any gain or
favour to himself or to any other person or to cause undue
harm or hardship 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;
or
(iii)
is guilty of corruption, favouritism, nepotism or lack of
integrity in his capacity as such public servant;
(c)"Chief
Minister" means the Chief Minister of the State;
(d)
"competent authority", in relation to a public
servant, means,-
(i)
in the case of the Chief Minister or a Member of the State
Legislature, or an office bearer of a political party, at
the State level, the Governor acting in his discretion;
(ii)
in the case of a Minister or Secretary, the Chief Minister;
(iii)
in the case of an officer of the All India Services, employed
in connection with the affairs of the State, the Minister
concerned;
(iv)
in the case of a Government servant, other than a secretary,
the Government of Kerala;
(v)
in the case of any other public servant, such authority,
as may be prescribed;
(e)
"corruption" includes anything made punishable
under Chapter IX of the Indian Penal Code
(Central
Act 45 of 1860) or under the Prevention of Corruption Act,
1988 (Central Act 49 of 1988);
(f)
"Government servant" means a person who is a member
of the civil services of the State of Kerala or who holds
a civil post or is serving in connection with the affairs
of the State of Kerala and includes any such person whose
services are temporarily placed at the disposal of the Government
of India, the Government of another State, a local authority
or any person, whether incorporated or not, and also any
person in the service of the Central or another State Government
or a local or other authority whose services are temporarily
placed at the disposal of the Government of Kerala;
Explanation.-
For the purpose of this clause the term 'another State Government
' includes the Union Territories;
(g)
"Governor" means the Governor of Kerala;
(h)
" grievance" means a claim by a person that he
sustained injustice or undue hardship in consequence of
mal-administration;
(i)
" local authority" means a Panchayath at any level
constituted under the Kerala Panchayat Raj Act,.1994 (13
of 1994) or a Town Panchayat or a Municipal Council or a
Municipal Corporation constituted under the Kerala Municipality
Act, 1994 (20 of 1994);
(j)
"Lok Ayukta" means the person appointed as the
Lok Ayukta under section 3
(k)
"mal-administration" means action taken or purporting
to have been taken in the exercise of administrative functions
in any case where,-
(i)
such action or the administrative procedure or practice
adopted in such action is unreasonable, unjust, oppressive
or improperly discriminatory; or
(ii)
there has been willful negligence or undue delay in taking
such action or the administrative procedure or practice
adopted in such action involves undue delay;
(l)"
Minister" means a member of the Council of Ministers
of the State, excluding the Chief Minister;
(m)
"Political party" means a political party or group
which has representaion in Parliament or in the Kerala Legislative
Assembly; or a political party which is treated as a recognised
political party in accordance with paragraph 6 of the Election
Symbols (Reservation and Allotment). Order, 1968 or a political
party registered under section 29 A of the Representaion
of People's Act, 1951; (Central Act 43 of 1951);
(n)
"prescribed" means prescribed by rules made under
this Act;
(o)
"public servant" means a person who is or was
at any time,-
(i)
the Chief Minister;
(ii)
a Minister;
(iii)
a member of the Legislative Assembly of the State of Kerala;
(iv)
a Government servant;
(v)
the Chairman and the Vice-Chairman (by whatever name called)
or a member of a local authority in the State or a statutory
body or corporation established by under any law of the
State Legislature, including a co-operative society, or
a Government Company within the meaning of section 617 of
the Companies Act, 1956
(Central Act 1 of 1956) and such other Corporations or Boards,
as the Government may, having regard to its financial interest,
in such Corporations or Boards, by notification from time
to time, specify;
(vi)
a member of a Committee or Board or Authority or Corporation,
statutory or non statutory, constituted by the Government
of Kerala;
(vii)
a person in the service or pay of,-
(A)
a local authority in the State;
(B)
a statutory body or a corporation (not being a local authority)
established by or under a State or a Central Act, owned
or controlled by the Government of Kerala and any other
board or corporation as the Government may, having regard
to its financial interest therein, specify by notification
in the Gazette from time to time;
(C)
a company registered under the Companies Act, 1956 (Central
Act 1 of 1956), in which not less than fifty-one per cent
of the paid up share capital is held by the Government of
Kerala or any company which is a subsidiary of such company;
(D)
a society registered or deemed to have been registered under
the Travancore Cochin literary , Scientific and Charitable
Societies Registration Act, 1955 (XII of 1955) or the Societies
Registration Act, 1860 (Central Act 21 of 1860), which is
subject to the control of the Government of Kerala and which
is notified, in this behalf, in the Gazette;
(E)
a co-operative society;
(F)
a University;
Explanation.-
In this clause, "co-operative society" means co-operative
society registered or deemed to have been registered under
the Kerala Co-operative Societies Act, 1969 (21 of 1969)
and "University" means a University established
by or under any law of the State of Kerala;
(viii)
the President, Secretary or Treasurer or any other office
bearer of a trade union registered under the Indian Trade
Unions Act 1926 (Central Act 16 of 1926);
(ix)
the Chairman or Vice-Chairman or President or Vice President
or Secretary or Treasurer or any other office bearer of
a political party, at the District or State level;
(x)
the Chairman or Manager or Secretary or Correspondent having
control over the administration of a private school, whether
under individual or corporate management, which receives
or has received aid or grant from the Government under the
Kerala Education Act, 1958 (6 of 1959), and the rules made
thereunder;
(xi)
the Chairman or Manager or Secretary or Correspondent having
control over the administration of a private college, whether
under unitary or corporate management, which is affiliated
to a University in the State and is governed by the Private
Affiliated Colleges (Arts and Science Colleges) Staff Direct
Payment of salary Rules, 1972;
(xii)
the Chairman or Manager or Secretary or Correspondent having
control over the administration of a private college, whether
under unitary or corporate management, affiliated to a University
in the State and which receives aid or grant from the Government
of Kerala; or
(xiii)
the Chairman or Manager or Secretary or Correspondent having
control over the administration of a Private Engineering
College or Private Polytechnic, whether under unitary or
corporate management, affiliated to a University in the
State or the State Board of Technical Examination., Kerala,
as the case may be, and is governed by the Rules for Payment
of Salaries to the Staff of the Private Engineering Colleges
and Polytechnics, 1972;
(p) "Secretary" means a Secretary
to the Government of Kerala and includes a Chief Secretary,
an Additional Chief Secretary, a Principal Secretary, a
Special Secretary, an Additional Secretary and a Joint Secretary;
(q)
"State" means the State of Kerala;
(r)"Upa-Lok
Ayukta" means a person appointed as Upa-Lok Ayukta
under section
3.
Appointment of Lok Ayukta and Upa-Lok Ayuktas.-
(1) For the purpose of conducting investigations
and inquiries in accordance with the provisions of this
Act, the Governor shall appoint a person to be known as
Lok Ayukta and two other persons to be known as Upa-Lok
Ayuktas.
(2)
A person to be appointed as Lok Ayukta shall be a person
who has held the office of a Judge of the Supreme Court
or that of the Chief Justice of a High Court and shall be
appointed on the advice tendered by the Chief Minister,
in consultation with the Speaker of the Legislative Assembly
of the State and the Leader of Opposition in the Legislative
Assembly of the State.
(3)
A person to be appointed as an Upa-Lok Ayuktas shall be
a person who holds or has held the office of a Judge of
a High Court and shall be appointed on the advice tendered
by the Cheif Minister in consultation with the Speaker of
the Legislative Assembly of the State and the Leader of
Opposition in the Legislative Assembly of the State:
Provided that the Chief Justice of the High Court concerned
shall be consulted, if a sitting judge is appointed as an
Upa-Lok Ayukta.
(4)
A person appointed as Lok Ayukta or Upa- Lok Ayukta shall,
before entering upon his office, make and subscribe, before
the Governor or a person appointed by him in that behalf,
an oath or affirmation in the form set out for the purpose
in the First Schedule.
4.Lok
Ayukta or Upa-Lok Ayukta not to hold any other office.-
(I) The Lok Ayukta or the Upa-Lok Ayukta
shall not be member of the Parliament or of the Legislature
of any State and shall not hold any office of trust or profit
(other than his office as Lok Ayukta or Upa-Lok Ayukta)
or carry on any business or practice any profession and
accordingly, before entering upon his office, a person appointed
as the Lok Ayukta or an Upa-Lok Ayukta shall, if he is practising
any legal profession, suspend practice of such profession.
(2)
A person who has been a member of a political party at any
time during the period of five years, immediately preceding,-
(a)
the commencement of this Act, in the case of first appointment,
after such commencement; or
(b)
the date on which the vacancy has arisen, in the case of
any subsequent appointment,
shall
not be eligible to be appointed as the Lok Ayukta or an
Upa-Lok Ayukta.
5.
Term of office and other conditions of service of
Lok Ayukta and Upa-Lok Ayukta.-
(1) A person appointed as Lok Ayukta or
Upa-Lok Ayukta shall hold office for a term of five years
from the date on which he enters upon his office:
Provided
that-
(a)
the Lok Ayukta may, or an Upa Lok Ayukta may , by writing
under his hand and seal addressed to the Governor, resign
his office;
(b)
the Lok Ayukta or an Upa-Lok Ayukta may be removed from
his office in the manner provided in section
(2)
A person who holds office as the Lok Ayukta or an Upa-Lok
Ayukta shall, on the expiration of his term of office, be
ineligible for re-appointment to that office.
(3) On ceasing to hold office, the Lok
Ayukta or an Upa-Lok Ayukta shall not be eligible for further
employment to any office of profit under the Government
or in any authority, corporation, company, society or university
referred to in item (vii)of clause
(o) of section 2.
(4)The
salary and allowances payable to, and other conditions of
service of the Lok Ayukta or an Upa-Lok Ayukta shall be
such, as may be prescribed:
Provided
that-
(a)
in prescribing the salary and allowances and other conditions
of service of the Lok Ayukta, regard shall be had to the
salary and allowances and other conditions of service of
a Supreme Court Judge or of the Chief Justice of a High
Court, as the case may be;
(b)in
prescribing the salary and allowances payable to, and other
conditions of service of, the Upa-Lok Ayuktas, regard shall
be had to the salary and allowances payable to, and other
conditions of service of a Judge of a High Court:
Provided
further that the salary and allowances payable to, and other
conditions of service of the Lok Ayukta or an Upa -Lok Ayukta
shall not be varied to his disadvantage after his appointment:
(5)
The expenditure in respect of the salaries and allowances
of the Lok Ayukta and the Upa-Lok Ayuktas and the administrative
expenses of the offices of the Lok Ayukta and the Upa-Lok
Ayuktas including all salaries, allowances and pensions
payable to, or in respect of, the persons serving in that
office shall be charged on the Consolidated Fund of the
State.
6.
Removal of Lok Ayukta or Upa -Lok Ayukta.-
(1) The Lok Ayukta or an Upa- Lok Ayukta
shall not be removed from his office except by an order
of the Governor, passed after an address by the Legislative
Assembly of the State, supported by a majority of the total
membership of the House and by a majority of not less than
two-thirds of the members of that House 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 Lok Ayukta or an Upa-Lok Ayukta under sub section
(1) shall be as provided in the Judges (Inquiry) Act, 1968
(Central Act 51 of 1968), in relation to the removal of
a judge and accordingly, the provisions of that Act shall
mutatis mutandis apply in relation to the removal of the
Lok Ayukta and the Upa-Lok Ayukta, as they apply in relation
to the removal of a judge.
(3)Notwithstanding
anything contained in sub-section (1) or sub-section (2),
an Upa-Lok Ayukta appointed, from among the sitting Judges
of the High Court, shall not be removed, except in like
manner and on the like grounds, as a Judge of a High Court.
7.
Matters which may be investigated by the Lok Ayukta
and the Upa-Lok Ayuktas.-
(1) Subject to the provisions of this Act,
the Lok Ayukta and one of the Upa-Lok Ayuktas, as may be
nominated by the Lok Ayukta for the purpose, may investigate
any action which is taken by or with the general or specific
approval of-
(i)
the Chief Minister; or
(ii)
a Minister; or
(iii)
a Member of the State Legislature; or
(iv)
a Secretary; or
(v)
an office bearer of a political party at the State Level;
or
(vi)
an officer rerferred to in sub-clause (iii) of clause (d)
of section 2, in any case where a complaint involving a
grievance or an allegation is made in respect of such action
and where there is difference of opinion between the Lok
Ayukta and the Upa-Lok Ayukta as so nominated, the action
shall be investigated by the Lok Ayukta and both the Upa-Lok
Ayuktas together and the decision of the majority therein
shall prevail.
(2)
Subject to the provisions of this Act, an Upa- Lok Ayukta
may investigate any action which is taken by, or with the
general or specific approval of, any public servant not
being the Chief Minister or a Minister or a Member of the
State Legislature or a Secretary or an office bearer of
a political party at State Level or an officer referred
to in sub-clause (iii) of clause (d) of section 2, in any
case where a complaint involving a grievance or an allegation
is made in respect of such actions or such action can be
or could have been in the opinion of the Upa-Lok-Ayukta,
the subject of a grievance or an allegation.
(3)
Notwithstanding anything contained in sub-sections (1) and
(2), the Lok Ayukta or an Upa-Lok Ayukta may investigate
any action taken by or with the general or specific approval
of a public servant, if it is referred to him by the Government.
(4)The
Lok Ayukta may, by general or special order ,assign to each
of the Upa-Lok Ayuktas the matters which may be investigated
by them under this Act.
(5)
Notwithstanding anything contained in sub-sections (1) to
(4), when an Upa-Lok Ayukta is unable to discharge his functions
owing to absence, illness or any other cause, his functions
may be discharged by the other Upa-Lok Ayukta, and in the
absence of both, by the Lok Ayukta.
(6)
Notwithstanding anything contained in any other provision
of this Act, no investigation made by an Upa-Lok Ayukta
under this Act and no action taken or things done by him
in respect of such investigation shall be open to question
on the ground only that such investigation relates to a
matter which is not assigned to him by such order.
(7)
For the removal of doubts, it is hereby clarified that the
term 'Lok Ayukta' wherever it is used in this Act, in relation
to any of the persons referred to in sub-section (1), shall
mean the Lok Ayukta and, as the case may be, one or both
of the Upa-Lok Ayuktas as provided in that sub-section.
8.
Matters not subject to investigation.-
(1) Except as hereinafter provided,
the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any
investigation under this Act, in the case of a complaint
involving a grievance in respect of any action, if such
action relates to any matter specified in the Second Schedule.
(2)
The Lok Ayukta or an Upa-Lok Ayukta shall not investigate,-
(a)
any action in respect of which a formal and public inquiry
has been ordered with the prior concurrence of the Lok Ayukta
or an Upa-Lok Ayukta, as the case may be;
(b)
any action in respect of a matter which has been referred
to inquiry under the Commissions of Inquiry Act, 1952 (Central
Act 60 of 1952);
(c)
any complaint involving an allegation made after the expiry
of five years from the date on which the action complained
against is alleged to have taken place:
Provided
that a complaint referred to in clause(c) may be entertained
by the Lok Ayukta or an Upa-Lok Ayukta, as the case may
be, after the expiry of the period referred to in the said
clause, if
the
complainant satisfies that he had sufficient cause for not
making the complaint within the period specified in that
clause.
(3)
In the case of any complaint involving a grievance, nothing
in this Act shall be construed as empowering the Lok Ayukta
or an Upa-Lok Ayukta to question any administrative action
involving the exercise of a discretion, except where he
is satisfied that the elements involved in the exercise
of the discretion are absent to such an extent that the
discretion can prima-facie be regarded as having been improperly
exercised.
9.
Provisions relating to complaints and investigations.-
(1) Subject to the provisions of this
Act, any person may make a complaint under this Act to the
Lok Ayukta or an Upa-Lok Ayukta.
(2)
Every complaint shall be made in such form and in such manner,
as may be prescribed, and shall be supported by an affidavit.
(3)
Where the Lok Ayukta or an Upa-Lok Ayukta proposes, after
making such preliminary inquiry as he deems fit, to conduct
any investigation under this Act, he-
(a)
shall forward a copy of the complaint to the public servant
and the competent authority concerned;
(b)
shall afford to such public servant, an opportunity to offer
his comments on such complaint;
(c)
may make such orders as to the safe custody of documents
relevant to the investigation, as he deems fit.
(4)
Save as aforesaid, the procedure for conducting any such
investigation shall be such, and may be held, either in
public or in camera,as the Lok Ayukta or the Upa-Lok Ayukta,
as the case may be considers appropriate in the circumstances
of the case.
(5)
The Lok Ayukta or an Upa-Lok Ayukta may, in his discretion,
refuse to investigate or discontinue investigation of, any
complaint involving a grievance or an allegation, if in
his opinion-
(a)
the complaint is frivolous or vexatious or is not made in
good faith;
(b)
there are no sufficient grounds for investigating or, as
the case may be , for continuing the investigation; or
(c)
other remedies are available to the complainant and in the
circumstances of the case it would be more proper for the
complainant to avail of such remedies.
(6)
In any case where the Lok Ayukta or an Upa-Lok Ayukta decides
not to entertain a complaint or to discontinue any investigation
in respect of a complaint he shall record his reasons therefore
and communicate the same to the complainant and the public
servant concerned.
(7)
The conduct of an investigation under this Act against a
public servant in respect of any action shall not affect
such action or any power or duty of any other public servant
to take further action with respect to any matter subject
to investigation.
(8)In
every proceeding before the Lok Ayukta or an Upa- Lok Ayyukta
under this Act, the State shall be made a party thereto
and the Government shall appoint a Special Attorney and
one or more senior Government Pleaders to represent the
Government before the Lok Ayukta or an Upa-Lok Ayukta, as
the case may be on the terms and conditions prescribed:
Provided
that it shall not be necessary that state should be made
a party in cases where Government interests are not involved.
10.
Issue of search warrant etc.-
(1) Where in consequence of information
in his possession, the Lok Ayukta or an Upa-Lok Ayukta,-
(a)
has reason to believe that any 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 for, or relevant to, any inquiry or other proceeding
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 valubale 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 disclousure to be made; or
(b)
consider that the purposes of any inquiry or other proceedings
to be conducted by him will be served by a general search
or inspection, he may by a search warrant authorise any
Police Officer, not below the rank of a Deputy Superintendent
of Police to conduct a search or carry out an inspection
in accordance therewith and in particular to,-
(A)
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;
(B)
search any person who is reasonably suspected of concealing
about his person any article, for which search should be
made;
(C)
break open the lock of any door, box, locker, safe, almirah
or other receptacle, for exercising the powers conferred
by item (A), where the keys thereof are not available;
(D)
seize any such property, document, money, bullion, jewelley
or other valubale article or thing found as a result of
such search;
(E)
place marks of identification on any property or document
or make or cause to be made extracts or copies therefrom;
or
(F)
make a note or an inventory of any such property, document,
money, bullion, jewellery or other valuable article or thing.
(2)
The provisions of the Code of Criminal Procedure, 1973 (Central
Act 2 of 1974), relating to search and seizure shall apply,
so far as may be to searches and seizures 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 (Central Act
2 of 1974).
11.
Evidence.-
(1) Subject to the provisions of this section,
for the purpose of any investigation (including the preliminary
inquiry, if any, before such investigation) under this Act,
the Lok Ayukta or an Upa-Lok Ayukta may require any public
servant or any other person who, in his opinion, is able
to furnish information or produce documents relevant to
the investigation to furnish any such information or produce
any such document.
(2)
For the purpose of any such investigation (including the
preliminary inquiry) the Lok Ayukta or an Upa-Lok Ayukta
shall have all the powers of a Civil Court, while trying
a suit under the Code of Civil Procedure, 1908 (Central
Act 5 of 1908), in respect of the following matters, namely:-
(a)
summoning and enforcing the attendance of any person and
examining him on oath;
(b)
requiring the discovery and production of any document;
(c)
receiving evidence on affidavits;
(d)
requisitioning any public record or copy thereof from any
court or office;
(e)
issuing commissions for the examination of witnesses or
documents;
(f)
such other matters as may be prescribed.
(3)
Any proceeding before the Lok Ayukta or an Upa-Lok Ayukta
shall be deemed to be a judicial proceeding within the meaning
of section 193 of the Indian Penal Code (Central Act 45
of 1860).
(4)
No person shall be required or authorised by virtue of this
Act to furnish any such information or answer any such question
or produce so much of any document,-
(a)
as might prejudice the affairs of the State or the security
or defence or international relations of India (including
India's relation with the Government of any other country
or with any international organisation); (b) as might involve
the disclosure of proceedings of the Cabinet of the Government
of Kerala or any Committee of that Cabinet and for the purpopse
of this sub-section, a certificate issued by the Chief Secretary
certifying that any information, answer or portion of a
document is of the nature specified in clause (a) or clause
(b) shall be binding and conclusive.
(5)
For the purpose of investigation under this Act, no person
shall be compelled to give any evidence or produce any document
which he could not be compelled to give or produce in proceedings
before a court.
12.
Reports of Lok Ayukta etc.-
(1) If, after investigation of any action
in respect of which a complaint involving grievance has
been made, the Lok Ayukta or an Upa-Lok Ayukta is satisfied
that such action has resulted in injustice or undue hardship
to the complainant or to any other person, the Lok Ayukta
or an Upa-Lok Ayukta shall, by a report in writing, recommend
to the competent authority concerned that such injustice
or hardship shall be remedied or redressed in such manner
and within such time, as may be specified in the report
and also intimate the complainant about its having made
the report.
(2)
The competent authority to whom a report is sent under sub-section
(1) shall, within one month of the expiry of the period
specified in the report, intimate or cause to be intimated,
as the case may be, to the Lok Ayukta or the Upa-Lok Ayukta
the action taken on the report.
(3)
If, after investigation of any action in respect of which
a complaint involving an allegation has been made, the Lok
Ayukta or anUpa-Lok Ayukta is satisfied that such allegation
is substantiated, either wholly or partly, he shall, by
report in writing, communicate his findings and recommendations
along with the relevant documents, materials and other evidence
to the competent authority and also intimate the complainant
about its having made the report.
(4)
The competent authority shall examine the report forwarded
to it under sub-section (3) and, within three months of
the date of receipt of the report, intimate or cause to
be intimated to the Lok Ayukta or the Upa-Lok Ayukta, as
the case may be, the action taken or proposed to be taken
on the basis of the report.
(5)
If the Lok Ayukta or the Upa-Lok Ayukta is satisfied with
the action taken or proposed to be taken on his recommendations
or findings referred to in sub-sections (1) and (3), he
shall close the case, under intimation to the complainant,
the public servant and the competent authority concerned;
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 also inform the competent authority
concerned and the complainant.
(6)
The Lok Ayukta shall present annually a consolidated report
on the performance of his functions as well as the functions
of the Upa-Lok Ayuktas, to the Governor.
(7)
On receipt of the special report under sub-section (5) or
the annual report under sub-section (6), the Governor shall
cause a copy thereof, together with an explanatory memorandum
, to be laid before the Legislative Assembly.
(8)
The Lok Ayukta or an Upa-Lok Ayukta may, at his discretion,
make available, from time to time, the substance of cases
closed or otherwise disposed of by him which may appear
to him to be of general, public, academic or professional
interest, in such manner and to such persons, as he may
deem appropriate.
13.
Payment of compensation.- If the Lok
Ayukta or an Upa-Lok Ayukta is satisfied that,-
(a)
all or any of the allegations made in a complaint have or
has been substantiated, either wholly or partly; and
(b)
having regard to the expenses incurred by the complainant
in relation to the proceedings in respect of such complaint
and all other relevant circumstances of the case, the complainant
deserves to be compensated, the Lok Ayukta or an Upa-Lok
Ayukta, as the case may be, shall determine the amount,
which shall be paid to the complainant by way of compensation
and the Lok Ayukta or an Upa-Lok Ayukta as the case may
be determine the person by whom, the said compensation shall
be paid, after giving that person a reasonable opportunity
of being heard.
14. Public Servant to vacate office if directed
by Lok Ayukta etc.-
(1) Where, after investigation into a complaint,
the Lok Ayukta or an Upa-Lok Ayukta is satisfied that the
complaint involving an allegation against the public servant
is substantiated and that the public servant concerned should
not continue to hold the post held buy him, the Lok Ayukta
or the Upa -Lok Ayukta, as the case may be, shall make a
declaration to that effect in his report under sub-section
(3) of section 12. Where the competent authority is the
Governor, the Government of Kerala or the Chief Minister,
he or it shall accept the declaration. In other cases, the
competent authority concerned shall send a copy of such
report to the Government, which shall accept the declaration.
(2)
When the declaration so made is accepted, the fact of such
acceptance shall immediately be intimated by registered
post, by the Governor, the Government or the Chief Minister,
if any of them is the competent authority and the Government,
in other cases and then, notwithstanding anything contained
in any law, order, notification, rule or contract of appointment,
the public servant concerned shall, with effect from the
date of intimation of such acceptance or deemed acceptance
of the declaration-
(i)
if he is the Chief Minister or a Minister, resign his office
of Chief Minister or Minister as the case may be;
(ii)
if he is a public servant falling under items (v) and (vi),
but not falling under items (iv) and (vii) of clause (o)
of section 2 , be deemed to have vacated his office; and
(iii)
if he is a public servant falling under items (iv) and (vii)
of clause (o) of section 2, be deemed to have been placed
under suspension by an order of the appointing authority
and the appointing authority shall initiate appropriate
action in accordance with the rules applicable to such public
servant:
Provided
that if the public servant is a member of an All India Service
as defined in section 2 of the All India Services Act, 1951
(Central Act 61 of1951), the Government shall take action
to keep him under suspension and initiate appropriate action,
in accordance with the rules or regulations applicable to
his service.
15.
Initiation of Prosecution.-
Notwithstanding anything contained in section 14, if after
investigation into any complaint, the Lok Ayukta or an Upa-Lok
Ayukta is satisfied that the public servant has committed
any criminal offence and that he should be prosecuted in
a court of law for such offence, then he may pass an order
to that effect and initiate prosection of the public servant
concerned, if there is no necessity for prior sanction;
and if prior sanction of any authority is required, with
the sanction of the appropriate authority.
Explanation:-
For the purpose of this section,-
(a)
'investigation' means the collection of evidence regarding
the correctness or otherwise of the allegation or grievance;
(b)'initiation
of prosecution' means the filing of a report or a complaint
before a court of competent jurisdiction to take cognisance
of an offence.
16.
Staff of Lok Ayukta, etc.-
(1) There shall be such officers and employees,
as may be prescribed, to assist the Lok Ayukta and the Upa-Lok
Ayuktas in the discharge of their functions under this Act.
(2)The
categories of officers and employees referred to in sub-section
(1) and their appointment and other conditions of service
including such special conditions, as may be necessary,
for enabling them to act without fear in the discharge of
their functions, shall be such, as may be prescribed, in
consultation with the Lok Ayukta.
(3)
Without prejudice to the provisions of sub-section (1),
the Lok Ayukta or an Upa-Lok Ayukta may, for the purpose
of conducting investigations under this Act, utilise the
services of-
(a)
any officer or investigating agency of the State Government;
or
(b)
any officer or investigating agency of the Central Government,
with the prior concurrence of that Government; or
(c)
any other agency.
(4) The officers and other employees referred
to in sub-section (1) shall be under the administrative
and disciplinary control of the Lok Ayukta
Provided
that when the Lok Ayukta is unable to discharge his functions
owing to absence, illness or any other cause, the senior
among the Upa-Lok Ayuktas may discharge the functions of
the Lok Ayukta under this sub-section.
17.
Secrecy of information.-
(1) Any information obtained by the
Lok Ayukta or an Upa-Lok Ayukta or members of his staff,
in the course, of, or for the purpose of, any investigation
under this Act and any evidence recorded or collected in
connection with such informatiuon, shall be treated as confidential
and no court shall be entitled to compel the Lok Ayukta
or the Upa-Lok Ayukta or any public servant to give evidence
relating to such information or to produce the evidence
so recorded or collected.
(2)
Nothing in sub-section (1) shall apply to the disclosure
of any information or particulars referred to therein,-
(a)
for the purpose of investigation for any report to be made
thereon or for the purpose of any action or proceedings
to be taken on such report under section 12;
(b)
for the purpose of any proceedings for an offence under
the Official Secrets Act, 1923 (Central Act 19 of 1923),
or an offence of giving or fabricating false evidence under
the Indian Penal Code (Central Act 45 of 1860) or for the
purpose of trail of any offence under section 15 or any
proceedings under section 18;or
(c)
for such other purposes as may be prescribed.
18.
Intentional insult or interruption to, or bringing into
disrepute to the Lok Ayukta or an Upa-Lok Ayukta.-
(1) Whoever intentionally insults or causes
any interruption to the Lok Ayukta or an Upa-Lok Ayukta,
while the Lok Ayukta or the Upa-Lok Ayukta is conducting
any investigation or inquiry under this Act shall, on conviction,
be punished with simple imprisonment for a term which shall
not be less than six months but which may extend to one
year or with fine, or with both.
(2)
Whoever, by words spoken or intended to be read, makes or
publishes any statement or does any other act, which is
calculated to bring the Lok Ayukta or an Upa-Lok Ayukta
into disrepute, shall, on conviction, be punished with simple
imprisonment for a term which shall not be less than six
months but which may extend to one year or with fine, or
with both.
(3)The
provisions of section 199 of the Code of Criminal Procedure,
1973 (Central Act 2 of 1974,)shall apply in relation to
an offence under sub-section (1) or sub-section (2), as
they apply in relation to an offence referred
to in sub-section (1) of the said section, subject to the
modification that no complaint in respect of such offence
shall be made by the Public Prosecutor except with the previous
sanction of the Lok Ayukta or the concerned
Upa-Lok Ayukta:
Provided
that the Court may, for adequate and special reasons, to
be recorded in the judgement, impose a lesser sentence of
imprisonment and fine.
19.
Power to punish for contempt.-
The Lok Ayukta and the Upa Lok Ayukts shall have and exercise
the same jurisdiction, power and authority uin respect of
contempt of itself, as the High Court has and may exercise
and for this purpose the provisions of the Contempt of Courts
Act, 1971 (Central Act 70 of 1971), shall have effect subject
to the modification that the reference therein made to the
High Court shall be construed to be reference therein made
to the Lok Ayukta and the Upa-Lok Ayuktas, as the case may
be.
20. Protection of action taken in good faith.-
(1) No suit, prosectuion or other legal
proceedings shall lie against the Lok Ayukta or an Upa-Lok
Ayukta or against any officer, employee, agency or person
referred to in section 16 in respect of anything which is,
in good faith, done while acting or purporting to act in
the discharge of his official dities under this Act.
(2)
No proceedings of the Lok Ayukta or an Upa-Lok Ayukta shall
be held to be bad for want of forum and, except on the ground
of jurisdiction, no proceedings or decision of the Lok Ayukta
or an Upa-Lok Ayukta shall be liable to be challenged, reviewed,
quashed or called in question in any court.
21.
Prosecution for false complaint.-
(1) Notwithstanding anything contained
in thisAct, whoever makes any complaint with malicious intention
under this Act shall, on conviction, be punished with imprisonment
for a term, which shall not be less than three months but
which may extend to six months and with fine, which shall
not be less than two thousand rupees but which may extend
to five thousand rupees.
(2)
No Court inferior to that of a court of the judicial Magistrate
of the First Class shall take coganizance of an offence
under sub-section (1)
(3)
No such court shall take cognizance of an offence under
sub-section (1), except on a complaint made by a person
against whom false, frivolous or vexatious complaint was
made, after obtaining the previous sanction of the Lok Ayukta
or the Upa-Lok Ayukta, as the case may be.
(4)
The prosecution in relation to an offence under sub-section
(1) shall be conducted by the Public Prosecutor and all
expenses connected with such prosecution shall be borne
by the Government.
22.
Public servants to submit property statement.-
(1) Every public servant other than a Government
servant, shall within* one year and six months after the
commencement of this Act, and thereafter before the 30th
day of June once in two years submit to the competent authority
in the presctibed form, a statement of his assets and liabilities
and those of the members of his family.
(2)
If no such statement is received by the competent authority
from any such public servant, within the time specified
in sub-section (1), the competent authority shall make a
report to that effect to the Lok Ayukta or the Upa-Lok Ayukta,
as the case may be and send a copy of the report to the
public servant concerned. If within two months of such report,
the public servant concerned does not submit such statement,
the Lok Ayukta or the Upa-Lok Ayukta, as the case may be,
shall publish, or cause to be published the name of such
public servant in three newspapers having wide circulation
in the state.
Explain:
In this section "family" means the spouse and
such children and parents of the public servant as are dependent
on him.
23.
Power to make rules.-
(1) The Government may, by notification,
in the Gazette, make rules for the purpose of carrying into
effect the provisions of this Act.
(2)
In particular, and without prejudice to the generality of
the foregoing provisions, such rules may provide for, -
(a)
the authorities to be prescribned under sub-clause (IV)
of clause (d) of section 2;
(b)
the salary, allowances and pensions payable to, and other
conditions of service of, the ok Ayukta and the Upa-Lok
ayuktas;
*substituted for the words'six mionths' by section 2 of
Act 2 of 2000 with effect from 15-11-1998 published in Kerala
Gazette Extraordinary No.9 dated 3rd January 2000.
(c) the form and
the manner in which a complaint may be made;
(d)the
powers of a civil court which may be exercised by the Lok
Ayukta or an Upa-Lok Ayukta under clause (f) of sub section
(2) of section 11;
(e)
the salary, allowances, appointment and other condtions
of service of the staff and employees of the Lok Ayukta
and the Upa-Lok Ayuktas under sub-section (2) of section
16.
(f)
any other matter for which rules have to be or may be made
under this Act.
(3)
Any rule under this Act may be made, either prospectively
or retrospectively, and when a rules is made with retrospective
effect, the reasons that necessiated the making of such
rules shall be specified in the statement to be placed before
the Legislative Assembly.
(4)
Every rule made under this Act shall be laid, as soon as
may be after it is made before the Legislative Assembly
while it is in session for a total period of fourteen days
which may be comprised in, one session or in two successive
sessions and if, before the expiry of the session in which
it is so laid or the session immediately following, the
Legislative Assembly makes any modification in the rule
or decides 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; so, however, that any
such modification or annulment shall be without prejudice
to the validity of anything previously done under that rule.
24.
Removal of doubts.-
(1) For the removal of doubts it is hereby
declared that nothing in this Act shall be construed as
authorising the Lok Ayukta or an Upa-Lok Ayukta to investigate
any action which is taken by or with the approval of,-
(a)
any judge as defined in section 19 of the Indian Penal Code(Central
Act 45 of 1860);
(b)
any officer or servant of any civil or criminal court in
the State;
(c)
the Accountant General of Kerala;
(d)
the Chief Election Commissioner, the Election Commissioners
and the Regional Commissioners referred to in article 324
of the Constitution of India and the Chief Electoral Officer,
Kerala;
(e)
the Speaker of the State Legislative Assembly;
(f)
the Chairman or a member of the Kerala Public Service Commission;
(g)
the State Election Commissioner appointed under article
243 (k) of the Constitution of India;
(h)
the Chairman or a member of the Kerala State Commission
for Backward Classes;
(i)
Chairperson or a member of the Kerala State Human Rights
Commission; and
(j)
the office bearers or members of the State Legal Services
Authority, the District Legal Services Authortiy, the High
Court Legal Services Committee and the Taluk Legal Services
Committee constituted under the Legal Services Authorities
Act, 1987 (Central Act 39 of 1987).
(2)
The provisions of this Act shall be in addition to the provision
of any other enactment or any rule or 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.
25.Power
to remove difficulties.-
(1) If any difficulty arises in giving
effect to the provisions of this Act, the Government may,
by order, do anything not inconsistent with such provisions,
which appear to them to be necessary or expedient for the
purpose of removing the difficulty.
(2)
No order under sub-section (1) shall be made after the expiration
of a period of two years from the commencement of this Act.
(3)
Every order made under sub-section (1) shall be laid, as
soon as may be after it is made, before the Legislative
Assembly, while it is in session for a total period of fourteen
days which may be comprised in one session or in two successive
sessions, and if before the expiry of the session in which
it is so laid or the sessions, immediately following, the
Legislative Assembly makes any modification in the order
or decides that the order should not be made the order shall
thereafter have effect only in such modified form or be
of no effect, as the case may be; so, however, that any
such modification or annualment shall be without prejudice
to the validity of anything previosly done under that order.
26.
Repeal and saving.-
(1) The Kerala Public Men's Corruption
(Investigations and Inquiries) Act, 1987 (24 of 1988) and
the Kerala Lok Ayukta Ordinance, 1998 (16 of 1998) are hereby
repealed.
(2)
Notwithstanding such repeal,-
(i)
in so far as it is not inconsistent with the provisions
of this Act anything done or any action taken under the
said Act shall be deemed to have been done or taken under
this Act and may be continued and completed under the corresponding
provisions of this Act:
Provided
that, for the purpose of this sub-section, : "Public
Men" as defined under the said Act shall be deemed
to correspond to "Public servants" under this
Act;
(ii)
all inquiries and investigations or other proceedings pending
before the Commision under the repealed Act shall stand
transfered to and be continued by the Lok Ayukta or the
Upa-Lok Ayukta, as the case may be, under the provisions
of this Act, as if it were commenced before him under this
Act;
(iii)
anything done or deemed to have been done or any action
taken or deemd to have been taken under the Kerala Lok Ayukta
Ordinance, 1998 (16 of 1998) shall be deemed to have been
done or taken under this Act.
(3)
Notwithstanding anything contained in this Act, initially
the staff of the Lok Ayukta shall also consist of the Secretary
and other officers and employees of the Kerala Public Men's
Inquiry Commission constituted under the Kerala Public Men's
Corruption (Investigations and Inquiries) Act, 1987 (24
of 1988) as if they were appointed under the provisions
of the Act, they shall , till their services are duly terminated
or reverted to the parent department, if on duputation,
be entitled to the same salary, allowances and other terms
and condtion sof service as are entitled to them immediately
before the commencement of this Act, until they are varied
in accordance with the provisions of this Act.
FIRST
SCHEDULE
[See
section 3(4)]
I..............................Having
been appointed as Lok Ayukta/Upa- Lok Ayukta 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 faithfylly and to the best of my ability,
knowledge and judgment perform the duties of my office without
fear or favour, affection or ill - will
SECOND
SCHEDULE
[See
section 8 (i) (a)]
(a)
Action taken for the purpose of investigating crime relating
to the security of the State.
(b)
Action taken in the exercise of powers in relation to determining
whether a matter shall go to a court or not.
(c)
Administrative action taken in matters which arise out of
the terms of a contract governing purely commercial relations
of the administration with customers or suppliers except
where the complainant alleges harassment or gross delay
in meeting contractual obligation.
(d)
Action taken in respect of appointment, removal, pay, discipline,
superannuation or other mattes relating to conditions of
service of public servants but, not including actions relating
to claims for pension, gratuity, provident fund or to any
claims which arises on retirement, removal or termination
of service.
(e)
Grant of honours and awards.
EXTRACT
FROM THE KERALA LOK AYUKTA ACT. 1999
(8
of 1999)
22.
Public Servants to submit property statement.- (1)
Every public servant other than a Government servant, shall
within one year and six months after the commencement of
this Act, and thereafter before the 30th day of June once
in two years submit to the competent authority in the prescribed
form, a statement of his assets and liabilities and those
of the members of his family.
(2)
If no such statement is received by the competent authority
from any such public servant within the time specified in
sub-section (1), the competent authority shall make a report
to that effect to the Lok Ayukta or the Upa-Lok Ayukta,
as the case may be and send a copy of the report to the
public servant concerned. If within two months of such report,
the public servant concerned does not submit such statement,
the Lok Ayukta or the Upa-Lok Ayukta, as the case may be,
shall publish, or cause to be published, the name of such
public servant, in three newspapers having wide circulation
in the state.
Explanation-
In this section "family" means the spouse and
such children and parents of the public servant as are dependent
on him.
