THE UTTARAKHAND LOKAYUKTA BILL, 2011 [UTTARAKHAND BILL NO. OF 2011]

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एम.एस. मेहता /M S Mehta 9910532720:
CHAPTER VI INVESTIGATION AND PROSECUTION AGAINST HIGH FUNCTIONARIES
Investigation and Prosecution against high functionaries
18.
No investigation or prosecution shall be initiated without obtaining permission from the Bench of all the members with Chairperson against any of the following persons:-
(i) The Chief Minister and any other member of the Council of Ministers.
(ii) Any Member of Uttarakhand Legislative Assembly.
CHAPTER VII POWERS OF LOKAYUKTA TO MAKE REGULATIONS
Powers of Lokayukta to make regulations
19.
(1) The Lokayukta may by notification make regulations consistent with this Act to carry out the provisions of this Act. (2) In particular and without prejudice to the generality of the power contained in sub-section (1) any such regulations may provide for all or any of the following matters, namely:-
(a) the creation of different wings in the Lokayukta to deal with different subjects like investigation, prosecution and other matters;
(b) the conferment of authority on officers at different levels to exercise powers under the Act and to lay down the procedure for any inquiries including those relating to complaints
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against its officers or members of staff ;
(c) periods within which the investigations and inquiries have to be completed
(d) To provide for the taking of certain decisions by appropriate benches of the Lokayukta by circulation only.
(e) Work norms for each category of officers and staff of Lokayukta.
(f) Code of Conduct for Lokayukta organisation at all levels.
(g) Any other matter on which Lokayukta deems fit to frame the regulations.
(3) The regulations framed by the Lokayukta under this Section shall be laid, as soon as may be after they are issued or made, before the Legislative Assembly of Uttarakhand.
CHAPTER VIII REMOVAL OF DIFFICULTIES
Removal of difficulties
20.
(1) If any difficulty arises in giving effect to the provisions of this Act, the State Government may, on the recommendation of the Lokayukta, by order, not inconsistent with the provisions of this Act, remove the difficulty provided that no such order shall be made after the expiry of a period of two years from the date of commencement of this Act.
(2) Every order made under this section shall be laid before the Legislative Assembly of Uttarakhand.
CHAPTER IX TIMELY COMPLETION OF INVESTIGATION AND TRIALS FOR CORRUPTION
Timely completion of investigation and trials for
21.
(1) Every investigating officer shall endeavour to complete the investigation of an offence within a period of six months but when necessary he may obtain extension of time from a Bench of the Lokayukta. The period of investigation as far as possible shall not
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corruption
extend beyond twelve months.
(2) Every effort will be made by the special courts trying an offence under the Prevention of Corruption Act, 1988 to complete the trial within a period of six months and if more time is required in a maximum period of twelve months.
(3) To achieve the objective of a speedy trial the Lokayukta shall make an annual assessment of the number of special courts required for this purpose and shall make a recommendation to the Government for creating a specific number of special courts which recommendations shall be binding on the Government.
(4) The Chief Justice of Uttarakhand High Court may constitute such number of special benches to hear cases under this Act, so as to ensure that an appeal in any case is decided as far as possible within six months.
(5) The judges of Special Courts set up to hear cases under this Act will as far as possible deal only with cases under this Act.
CHAPTER X WHISTLE BLOWERS
Protection of whistle blowers
22.
(1) Any public official or any other person having information of any corruption in any public authority would be encouraged to send the information confidentially to the Lokayukta; and it shall be the duty of the Lokayukta to get an inquiry made into such information and if necessary get an investigation made under the Prevention of Corruption Act, 1988. (2) Lokayukta may issue necessary orders to provide protection to whistle blowers from any physical harm or administrative harassment. Identity of such whistle blowers shall also be protected if the whistle blower so desires.
(3) For achieving this objective it shall be competent for the Lokayukta to give suitable direction to the Government for providing security
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as well as to any other authority to ensure that no harassment is caused to such whistle blower. (4) Orders under this section shall be passed expeditiously and in any case within fifteen days of receipt of complaint. Immediate action will be taken in cases involving a threat of physical victimization. (5) The investigation in complaints by whistleblowers facing physical or professional victimization shall be fast tracked and completed within three months of receipt of the same.
CHAPTER XI PUNISHMENTS AGAINST CORRUPT PUBLIC SERVANTS
Penalties and punishments against corrupt public servants
23.
(1) After the completion of an investigation if the Lokayukta is satisfied that the offence has been committed, it may either initiate prosecution against such government servant or may initiate proceedings for imposition of punishment of dismissal, removal or reduction in rank or both. (2) Lokayukta shall appoint such officers, who may be retired judges or retired government servants or such others as may be deemed fit by Lokayukta, to act as judicial officers for the purpose of inquiry under this section, at such terms and conditions as may be provided in regulations.
(3) One or more judicial officers will conduct an inquiry against such Government servant for imposition of punishment of dismissal, removal or reduction of rank in which full opportunity to show cause would be given to such government servant. The inquiry will be completed within a period of three months. After conclusion of the inquiry, judicial officer(s) shall recommend the punishment of dismissal, removal and reduction in rank if any, to be awarded to that Government servant. The final decision on the recommendation of the judicial officer(s) will be made by the
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Lokayukta. (4) The decision in sub-section (3) shall be binding on the appointing/ disciplinary authority.
Quantum of Penalties and punishments
24.
(1) For any act of corruption, the punishment shall not be less than six months of rigorous imprisonment and may extend up to imprisonment of ten years. In the rarest of rare case, the punishment may extend upto imprisonment for life. (2) The Special Court may take into consideration the higher rank of an accused person to inflict a more severe punishment. (3) If the beneficiary of an offence is a business entity, in addition to the other punishments provided for under this Act and under the Prevention of Corruption Act, 1988 a fine of up to five times the loss caused to the public shall be recovered from the accused and the recovery may be made from the assets of the business entity and from the personal assets of its Managing Directors / Directors, if the assets of the accused person are inadequate. (4) If any company or any of its officer or Director is convicted for any offence under Prevention of Corruption Act, 1988 that company and all companies promoted by any of that company‟s promoters shall be blacklisted and be ineligible for undertaking any government work or contract in future. (5) If a public servant is convicted under the Prevention of Corruption Act, 1988 such public servant shall stand removed from his office.
Execution of imposed financial penalty
25.
Wherever Lokayukta directs imposition of financial penalty on any officer under this Act to be deducted from his salary, it shall be the duty of the Drawing and Disbursing Officer of that Department to implement such order, failing which the said Drawing and Disbursing Officer shall make him self liable for similar penalty.
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CHAPTER XII REDRESSAL OF GRIEVANCE IN CERTAIN CASES
Redressal of grievance in certain cases
26.
(1) In the event a person not getting the grievance redressed even by the Second Appellate Authority under the Uttarakhand Right to Service Act, 2011 can make a complaint to the Lokayukta. (2) The Lokayukta after hearing may reject the complaint or accept it and issue a direction to an appropriate authority to get such grievances redressed within the time fixed by the Lokayukta. (3) The Lokayukta in such cases where complaint is accepted shall fix responsibility for non-redressal of grievance and shall also impose a penalty on Designated Officer and / or First Appellate Authority and / or Second Appellate Authority appointed under the Uttarakhand Right to Service Act, 2011 which shall not be less than ` 5000 and upto a maximum of ` 50,000 for each complaint. (4) Apart from levying the penalty, the Lokayukta after inquiry may also recommend to the Appointing / Disciplinary Authority the suitable punishment to be imposed on delinquent official. Such recommendation will be binding on the Appointing / Disciplinary Authority. (5) The Lokayukta may also order payment of suitable amount of compensation to the person whose grievance could not be redressed under the Uttarakhand Right to Service Act, 2011. (6) The duties of Lokayukta under this Section shall be performed by judicial officers appointed under Section 23 of this Act with the approval of the Authority prescribed by Lokayukta.
CHAPTER XIII FINANCES OF LOKAYUKTA
Finances of Lokayukta
27.
(1) All expenses of the Lokayukta shall be charged to the Consolidated Fund of the state.
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(2) Lokayukta shall prepare its budget and send the same to the government. After sanction of the budget by the government, it will incur its expenditure as per financial rules of the government (or rules framed by Lokayukta) without any further administrative or financial approval from any Government agency to incur expenditure.
CHAPTER XIV SEIZURE AND CONFISCATION OF PROPERTY AND RECOVERY OF COMPENSATION FROM CORRUPT PUBLIC SERVANTS
Seizure and confiscation of property and recovery of compensation from corrupt public servants
28.
(1) After a public servant has been found guilty by the Special Court of having committed an offence under the Prevention of Corruption Act, 1988 the Court would also determine the assets and properties which have been acquired by such accused person by his corrupt acts. (2) The Special Court will pass an order for the confiscation of all the assets and properties which it has found to have been acquired by the corrupt acts of the convicted public servants as well as the subsequent accruals on these assets. (3) The Special Court would also determine whether apart from the above the accused person by his corrupt acts has also caused any loss to the exchequer or any other person and determine the amount of loss so caused. The Court shall make an order levying a fine on the accused person so convicted for the recovery of the entire loss which his corrupt acts have caused and shall also apportion this amount among the various convicted accused persons to be recovered from them as fines.
(4) During the course of investigation if the Investigating Officer finds any property or asset which appears to have been acquired by the
28
corrupt acts of an accused person who is being investigated, it shall make an order of attachment of those assets so that they are available for confiscation at the time of the conviction of such accused persons. In case the accused person is ultimately acquitted, these attached assets and properties will be restored to him.
CHAPTER XV PUBLIC SERVANTS PROPERTY STATEMENTS
Property statements of Public servants
29.
(1) A public servant shall within three months after the commencement of this Act and thereafter by 30th June of every year submit to the Head of that public authority in which the said public servant is functioning or to such other authority as may be prescribed, an annual statement of his assets and liabilities (pertaining to Financial Year from 1st April to 31st March) and those of the members of his family which shall include their sources of income, in respect of the categories of public servants in the format prescribed by the Lokayukta. Explanation:- In this Section family of a public servant means the spouse and such children and parents of the public servant and such other people as are dependent on him. (2) If such statement is not submitted by the public servant by 31st July of that year, payment of his pay / salary will be stopped by the Public Authority with immediate effect till the statement is filed. (3) The Head of each public authority or such other authority as may be prescribed shall ensure that all such annual statements are put on the website by 31st of August of that year. (4) If it is found that the public servant owns some property which was not disclosed in his statement of assets, that property would be liable to be confiscated by the Lokayukta.
(5) If the public servant is found to be in possession or enjoyment of any property which is not shown in his statement of assets, it shall
29
be presumed that it was owned by him unless he proves to the contrary.
CHAPTER XVI APPLICABILITY AND MODIFICATIONS OF THE PROVISIONS OF CERTAIN OTHER ACTS
Applicability and modifications of the provisions of certain other Acts
30.
(1) Sanctions under Sections 19(1) and 19(2) of the Prevention of Corruption Act, 1988 and under Section 197 of Code of Criminal Procedure (CrPC) shall be deemed to have been granted once they have been granted by Lokayukta. (2) The provisions of sections 105C to 105I of CrPC shall apply to offences under the Prevention of Corruption Act, 1988 whether or not they are transnational in nature. (3) Section 389(3) of CrPC shall not apply to offences under Prevention of Corruption Act, 1988. (4) The right to file appeals under section 377 or 378 of CrPC shall be exercised by Lokayukta. (5) Under section 372 of CrPC, the power to file an appeal shall be with the complainant as well. (6) Notwithstanding anything contained in Section 397 of CrPC, no court shall ordinarily call for records in cases related to trial of offences in Prevention of Corruption Act, 1988 during any trial by a special court : Provided that if the court calls for records, the same shall be returned within a period of one month. (7) Any permission which is required under any law for initiating investigation or initiating prosecution under any Act shall be deemed to have been granted once the Lokayukta has granted permission to initiate investigation or prosecution for any offences under the Prevention of Corruption Act, 1988.
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(8) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 a Special Court shall hold the trial of an offence on day-to-day basis, and shall not grant adjournment for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice and for reasons to be recorded in writing.
CHAPTER XVII MISCELLANEOUS PROVISIONS
Penalty on complainant for complaint made for harassment
31.
(1) Notwithstanding anything contained in this Act, if someone makes any complaint under this Act, which lacks any basis or evidence and is held by Lokayukta to be meant only to harass certain authorities, Lokayukta may impose such fines on that complainant as it deems fit, but the total fine in any one case shall not exceed ` one lakh : Provided that no fine can be imposed without giving a reasonable opportunity of being heard to the complaintant : Provided further that merely because a case could not be proved under this Act after investigation shall not be held against a complainant for the purposes of this section. (2) Such fines shall be recoverable as dues of arrears of land revenue. (3) A complaint or allegation once made under this Act shall not be allowed to be withdrawn.
Bar on re- appointment of public servants and transparency in contracts etc.
32. (1) Till two years, after the retirement or resignation, no government official shall be eligible to take up jobs, assignments, consultancies, etc. with any person, company, or organisation that he had dealt with in his official capacity. (2) All contracts, public-private partnerships, transfer by way of sale, lease, and any form of largesse by any public authority shall be done with complete transparency and by calling for public tender/auction/bids unless it is an emergency measure or where it is
31
not possible to do so for reasons to be recorded in writing. Any violation of this shall make the contract/largesse void. The details of all such transactions would be put up by the public authority on a public website. (3) All contracts, agreements or MOUs known by any name related to transfer of natural resources, including land and mines to any private entity by any method like public-private partnerships, sale, lease or any form of largesse by any public authority shall be put on the website within a week of being signed.
Grant immunity to the bribe giver by the special court
33. Any bribe giver may be granted immunity from prosecution by the special court if he voluntarily gives timely information to the Lokayukta about the giving of bribe by him with entire evidence for the purpose of getting the concerned bribe taker/public servant caught and convicted, provided he also relinquishes all the illegitimate benefits which he had received by the giving of that bribe. If the information provided by such bribe giver is subsequently found to be false, the immunity could be withdrawn by the special court.
Power to punish for Contempt
34.
The Lokayukta shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as the High Court has and may exercise such power or authority, for this purpose under the provision of the Contempt of Courts Act, 1971, which shall have effect subject to the modification that the references therein to a High Court shall be construed as including a reference to Lokayukta.
Power to make Rules
35. (1) The State Government may, by notification in the Official Gazette, make rules for the purpose of carrying into effect the provisions of this Act. (2) Every rule made under this Act shall be laid as soon as may be after
32
it is made before House of the State Legislature while it is in session for a total period of thirty 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 session immediately following the House agrees in making any modification in the rule or the House 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; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Saving and repeals
36. (1) The Uttar Pradesh Lokayukta and Up-Lokayukta Act, 1975 which was made applicable to Uttarakhand after the creation of the state is hereby repealed in so far as Uttarakhand State is concerned. (2) The sections from 12 to 18 of Uttarakhand Right to Service Act, 2011 shall be omitted.
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SCHEDULE [See section 4(26)] I, ………………………………………………… having been appointed Chairperson (or a Member) of the Lokayukta 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, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will. * * * * * * * *

Uttarakhandi-Highlander/मी उत्तराखंडी छियो:

Seems to be ok. We have to see how effectively it work works after it is implemented.

एम.एस. मेहता /M S Mehta 9910532720:

Now go through this news on Lokayukt in Uttarakhand
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टीम अन्ना से चूकीं खामियां

पूनम पाण्डे।।
भले ही अन्ना हजारे और उनकी टीम उत्तराखंड लोकायुक्त बिल का गुणगान करते नहीं थक रही हो, लेकिन गौर से देखें तो यह बिल बेहद कमजोर है। इस पर अमल करके मुख्यमंत्री तो क्या, किसी विधायक के खिलाफ भी भ्रष्टाचार का आरोप आसानी से दर्ज नहीं किया जा सकता। यही नहीं, इसके प्रावधान ऊंचे स्तर के नौकरशाहों को खासी राहत पहुंचाने वाले हैं। लोकायुक्त बिल की धारा-18 में साफ कहा गया है कि मुख्यमंत्री, मंत्री और विधानसभा के सभी सदस्यों के खिलाफ कोई भी शिकायत लोकायुक्त के सभी सदस्यों की अनुमति के बिना स्वीकार नहीं की जा सकती है। बिल में कम से कम 5 और अधिकतम 7 सदस्य रखने की बात कही गई है। इस हिसाब से तो उत्तराखंड के किसी भी जनप्रतिनिधि के खिलाफ शिकायत पत्र तक स्वीकार करवाना आसान नहीं हो पाएगा।

टीम अन्ना बार-बार कहती रही है कि हमारे राजनेता भ्रष्टाचार में डूबे हैं और पूरा सिस्टम बदलने की जरूरत है। लेकिन वह इस पर कुछ नहीं बोल रही कि उत्तराखंड का लोकायुक्त बिल किस तरह भ्रष्ट नेताओं को सजा दिला पाएगा। राज्य सरकार तो अपने बिल का बचाव करेगी ही, सो संसदीय कार्य मंत्री प्रकाश पंत ने कह दिया कि मुख्यमंत्री, मंत्री और विधायकों के खिलाफ आने वाली शिकायत पर फैसला कैसे होगा, यह नियमावली में तय किया जाएगा। नियमावली अभी बननी है। इसमें तय किया जाएगा कि शिकायत स्वीकार करने के लिए सभी की सहमति जरूरी है, आधे से अधिक की या फिर दो तिहाई की? मगर टीम अन्ना के सदस्य मनीष सिसोदिया क्यों बिल का बचाव कर रहे हैं, यह समझ से परे है। उत्तराखंड सरकार तो कह रही है कि नियमावली अभी बननी है। लेकिन सिसोदिया कह रहे हैं कि बिल में आधे से अधिक सदस्यों की सहमति की आवश्यकता के प्रावधान में कुछ भी गलत नहीं है। उनके मुताबिक राजनेताओं के खिलाफ तो जाहिर है कि ज्यादा शिकायतें आएंगी। उनके विरोधी अपनी भड़ास निकालने के लिए अनावश्यक शिकायत कर सकते हैं। तो ऐसे में नेताओं के लिए सेफगार्ड जरूरी है। जब नियमावली बनी ही नहीं तब सिसोदिया की यह सफाई टीम अन्ना के मकसद पर सवाल खड़ा करती है।

राज्य में चुनावी माहौल है। इसका फायदा लेने के लिए जहां बीजेपी लोकायुक्त बिल की डुगडुगी बजा रही है वहीं कांग्रेस ने भी बीजेपी को उसी के हथियार से मात देने की रणनीति बनाई है। कांग्रेस के नेता इस बात का प्रचार करने में जुटे हैं कि उत्तराखंड में पारित लोकायुक्त बिल पूरी तरह असमानता पर आधारित है। उनका तर्क है कि बिल के जरिए किसी भी छोटे कर्मचारी और अधिकारी पर तो आसानी से कार्रवाई की जा सकती है लेकिन नेता और बड़े अधिकारी पर शिकंजा कसना मुश्किल है। बिल के मुताबिक अपर सचिव से ऊपर के नौकरशाहों के खिलाफ शिकायत स्वीकार करनी है या नहीं, इसका भी फैसला तीन लोगों की कमिटी करेगी।

लोकायुक्त की चयन समिति का अध्यक्ष मुख्यमंत्री को बनाया गया है। साथ ही विधानसभा में प्रतिपक्ष के नेता भी इस समिति में होंगे। ऐसे में यह मुमकिन है कि सत्ता पक्ष और विपक्ष मिलकर ऐसे लोगों को लोकायुक्त की गद्दी पर बैठाएं जो उनके हितों का पूरा ध्यान रखें। सोचा जा सकता है कि वैसा लोकायुक्त जनता के हितों की रक्षा कैसे कर पाएगा। बिल के मुताबिक लोकायुक्त के आधे सदस्य विधिक पृष्ठभूमि के होंगे न कि न्यायिक पृष्ठभूमि के। यानी किसी राजनैतिक दल से जुड़ा शख्स भी, जो हाईकोर्ट में पिछले 20 सालों से प्रैक्टिस कर रहा हो, लोकायुक्त का सदस्य हो सकता है। इस तरह यह बिल ऐसे सारे दरवाजे खुले रखता है जिससे लोकायुक्त और उसकी बेंच नेताओं के हाथ का खिलौना बन जाए। उत्तराखंड वैसे तो छोटा-सा राज्य है लेकिन यहां करीब 40 हजार स्वयंसेवी संगठन (एनजीओ) काम कर रहे हैं। इन संगठनों पर भी लोकायुक्त नजर नहीं रख सकेगा। इन संगठनों को ज्यादातर बड़े नौकरशाहों और नेताओं के रिश्तेदार चलाते हैं। फिर ऐसे में यहां के करप्शन का क्या होगा? क्या टीम अन्ना के पास कोई जवाब है?

http://navbharattimes.indiatimes.com/articleshow/10756510.cms

Uttarakhandi-Highlander/मी उत्तराखंडी छियो:

I think CM to be chairman of Lokayukt is really matter of doubtful.

This is totally hotch-potch.

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