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Wednesday, December 02, 2020

Clerical error leaves civil, public post-holders out of grievance redressal mechanism in Goa: ex-Lokayukta

According to Prafulla Kumar Misra, the definition of a ‘public functionary’ — against whom a complaint of maladministration can be raised — in the Act does not include any person appointed to a civil or public service or a post in connection with the affairs of the state.

Written by Smita Nair | Panaji | Updated: October 22, 2020 4:59:47 am
Prafulla Kumar Misra. (Express Photo Smita Nair)

A ‘clerical mistake’ in The Goa Lokayukta Act, 2011, has left those appointed to a civil or public post out of the ambit of the grievance redressal mechanism for maladministration, according to the state’s former Lokayukta Justice (retd) Prafulla Kumar Misra.

According to Misra, the definition of a ‘public functionary’ — against whom a complaint of maladministration can be raised — in the Act does not include any person appointed to a civil or public service or a post in connection with the affairs of the state.

Instead, because of a change in sub-clause numbers under the relevant section in the Bill, the final Act includes ‘public functionary’ as anyone who has received a grant of Rs 1 lakh or more from the state government — mostly non-profit groups and NGOs.

The Indian Express had reported on October 5 that Misra left Goa saying no government had acted on the 21 reports he submitted against public functionaries in his tenure of nearly four-and-a-half years.

Along with earlier reports, Misra said this ‘clerical mistake’ was pointed out in three official letters to the Chief Minister since 2017, and finally, in a special report made to the Governor asking for a former chief minister and two public functionaries to be prosecuted.

Chief Minister Pramod Sawant has maintained that Lokayukta reports “were recommendatory and not binding”.

Speaking over the phone from Odisha, Misra told The Indian Express, “It’s (the error) due to gross oversight and has never been rectified.”

“One route for correction is ordinance. None of our reports have been tabled in the Assembly for a legislative debate. I can only hope someone takes our reports to the High court,” he added.

The Act allows for grievance redressal under section 2 (i), where, for the purpose of maladministration, a public functionary is anyone who falls under sub-clause (xi) of clause (q) under section 2.

Clause (q) lists public functionaries in various sub-clauses — with the Chief Minister listed in sub-clause (i) and MLAs listed in sub-clause (ii). All government personnel are defined from clause (iii).

While an allegation of corruption can be moved against anyone, the second arm of the law, dealing with maladministration, is for any “unreasonable, unjust, oppressive, improper, discriminatory” administrative action.

“In the Bill, public functionaries, as defined in Section 2 (i) under grievance, fell under two specific sub-clauses — (xi) and (xii),” said Misra. These two clauses, written in legal language, originally included officers as ‘those appointed to a civil or public service or post in connection with the affairs of the State of Goa’, and ‘those in service or pay of a local authority, University, Statutory Body or Corporation, Society, Government Company and other institutions and everyone listed in sub clause (iii) to sub clause (x).’

When the Bill went to a select committee — led by then chief minister, select ministers and MLAs — on December 16, 2003, two sub-clauses, numbered (vi) and (vii), related to ‘leader or member of trade union’ and ‘Office bearer of political party’ respectively, were dropped from the Bill. A new-sub clause identifying those who avail grants from the government of Rs one lakh or more was added.

“This meant the sub-clauses which defined public functionary for grievance were pushed down and got renumbered,” Misra said.

Public functionaries listed in sub-clause (xi) and (xii) under clause (q) in the Bill, were now listed under sub-clauses (ix) and (x) under the same clause in the Act.

According to Misra, clause (i) of Section 2 — which defines who comes under the grievance redressal mechanism’s ambit — was not renumbered correspondingly.

The renumbered Bill, sent for approval to the President, still showed ‘public functionary’ under sub-clauses 2 (q) (xi) and 2 (q) (xii), under the definition of grievance, though now, sub clause 2 (q) (xii) did not exist.

Misra said he first flagged the error in 2016 after a detailed study of all the official correspondence between 2003, when it was first drafted, to October 10, 2011, when the Act was passed.

“Much later, when a drafting official discovered it, he merely deleted 2 (q) (xii) in Section 2 under grievance and let 2 (q) (xi) remain — which now is a different bunch of people altogether,” he said.\

Misra said in proceedings reports filed between 2016 and 2020, he repeatedly appealed to the government to insert corrective clauses to “restore the original intent of the legislature and bring government officials and officials of other statutory controlled entities under the grievance redressal function of the Lokayukta…”

“We met the then Chief Minister Manohar Parrikar informing him of the serious issue in 2016. He assured me he is getting the matter introduced in the Assembly through a Private Member’s Bill. Later, he said it will have to be through an ordinance,” said Misra.

“We met Chief Minister Pramod Sawant soon after as he took charge. Till date, there has been no response,” he added.

“When such obvious and inadvertent mistakes occur, the authority vested with the solemn duty of implementing the statute is not expected to fold his hands and seek divine intervention or wait for legislative amendments,” wrote Misra in one of proceeding reports sent to the Government.

“It’s his onerous duty and obligation to implement the avowed intention of the legislation by rendering a purposive interpretation to rectify the mistakes and fill up the gaps so that the object of the Act is not frustrated by an overly pedantic and literal interpretation,” he added.

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