SURAJ NANDREKAR
suraj@herald-goa.com
PANJIM: Although State Chief Minister Dr Pramod Sawant has stated that the Lokayukta report to the government is ‘recommendatory’, Herald has found that the Goa Lokayukta Act, 2011 has provisions that make the report binding on the government.
Lokayukta PK Misra recently ordered the government to register a FIR against former chief minister Laxmikant Parsekar, former mines secretary Pawan Kumar Sain and the former director of mines and geology Prasanna Acharya for illegally renewals to 88 mining leases in 2015.
Sawant was quick to react on the issue stating that the report was ‘recommendatory’ and not binding on the government.
As Herald studied the Goa Lokayukta Act, a copy of which is in possession of paper, it has come to light that the Act makes it mandatory on the competent authority to initiate prosecution in a court of law based on a report from the institution.
Herald presents sections of law which state that the government has to Act on the Lokayukta report.
Section 16, Reports of Lokayukta: (1) (a) If, after investigation of any complaint involving an allegation, the Lokayukta or the Upa-Lokayukta is satisfied that such allegation is substantiated either wholly or partly, he shall, by report in writing within a period of ninety days from the date of the completion of inquiry to the government, communicate his findings and recommendations and as far as possible along with the relevant documents, materials, and other evidence to the competent authority concerned and a copy of the report regarding the findings and recommendations shall be submitted to the government.
(b) If, after investigation of any complaint involving a grievance, the Lokayukta or the Upa-Lokayukta, is satisfied that in consequence of mal-administration by the public functionary, the complainant has sustained injustice or undue hardship, the Lokayukta or the Upa-Lokayukta, shall by a report in writing recommend to the public functionary and the competent authority concerned, that such injustice or undue hardship shall be remedied or redressed and as such report shall be acted upon as far as possible within 60 days and a report shall be sent to the Lokayukta or Upa-Lokayukta accordingly.
Section 16 (2) an (3): The competent authority shall examine the report forwarded to it under sub-section (1), and within three months of the date of receipt of the report, intimate or cause to be intimated to the Lokayukta or Upa-Lokayukta, as the case may be, the action taken or proposed to be taken, on the basis of the report.
(3) If the Lokayukta or the Upa-Lokayukta is satisfied with the action taken or proposed to be taken on his recommendation referred to in clause (a) of sub-section (i) he shall close the case under information to the complainant, if any, the public functionary and the competent authority concerned, but where he is not 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, if any.
Contrary to the government stand, the Act says that the authority has to either accept or reject the report within three months.
Section 16: Public functionary to vacate office says (1) Where, after investigation into a complaint, the Lokayukta or the Upa-Lokayukta is satisfied that the complaint involving an allegation against the public functionary is substantiated and that the public functionary concerned should not continue to hold the office held by him, the Lokayukta or the Upa-Lokayukta shall make a declaration to that effect in his report under clause (a) of sub-section (1) of Section 16. The Competent Authority shall, within a period of three months from the date of receipt of the report, either accept or reject such declaration after giving an opportunity of being heard to the public functionary concerned.
(2) If the declaration under sub-section (1) is accepted or rejected within such period of three months, the fact of such acceptance or rejection shall immediately be intimated by the competent authority to the Lokayukta or the Upa-Lokayukta, as the case may be, and to the public functionary concerned.
(3) If the declaration under sub-section (1) is not rejected within such period of three months, it shall be deemed to have been accepted by the competent authority, on the expiry of the said period of three months and the fact of such deemed acceptance of declaration shall immediately be intimated by the Lokayukta or the Upa-Lokayukta, as the case may be, to the competent authority and the public functionary concerned.
The Lokayukta is also armed with Section 17 in this case which states, Initiation of Prosecution.— If, after investigation into any complaint, the Lokayukta or Upa-Lokayukta, is satisfied that the public functionary has committed a criminal offence and that he should be prosecuted in a court of law for such an offence, then he may pass an order to the effect and the appropriate authority shall initiate prosecution against the public functionary concerned: Provided that if prior sanction of any authority is required under any law for the time being in force, for such prosecution, then, such prior sanction shall be obtained from such authority before initiation of such prosecution.
More importantly, the Lokayukta Act states that the report cannot be challenged in court of Law.
22 Protection: (1) No suit, prosecution or other legal proceedings shall lie against the Lokayukta or Upa-Lokayukta or against any member of the staff of the office of the Lokayukta or any officer, agency, or person referred to in sub-section (5) of Section 8, in respect of anything which is done or intended to be done in good faith under this Act. (2) Save as otherwise provided in this Act, except on the grounds of jurisdiction, no proceedings, decision, order, or any report of the Lokayukta or Upa-Lokayukta, as the case may be, including any recommendation made there under, shall be liable to be challenged, reviewed, quashed, modified or called in question in any manner whatsoever in any court or tribunal.
