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Maheshkumar Dhirajlal Thakkar Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR293
AppellantMaheshkumar Dhirajlal Thakkar
RespondentState of Gujarat
Cases ReferredHarbilas v. The Crown A.I.R.
Excerpt:
.....he/she may be considered fit and on the scale of pay and on the terms and conditions which may be in force from time to time during the tenure of his/her employment under the railway administration. 69 clearly stated that he would not be eligible for the provident fund scheme. the very fact that this definition states that the apprentice would mean a person deputed for training in a trade or business with a view to employment in government service, would clearly rule out the interpretation put by mr. this definition clearly states that a person is employed for training with a view to employment in government service. in my view, therefore, the learned sessions judge had clearly erred in holding that the present petitioner had engaged himself in a trade while he was receiving training as..........who with the consent of the party of the second part bound himself to serve government as a trade apprentice in any office situated on the western railway for a period of one year commencing from 15th december 1967. under the terms of the agreement, the petitioner was to receive a monthly stipend at the rate of rs. 110/- for the first year and rs. 113/- per month for the second year. under note no. 1 of the said agreement, the government had an option to decide on individual merits whether the apprentice should be allowed to continue to receive the training by withdrawing his stipend in case it was considered that he had failed to complete the prescribed training satisfactorily. clause 6 of the agreement stated that:the apprentice shall devote his/her whole time to the training.....
Judgment:

A.A. Dave, J.

1. This revision application raises an important question of law whether an apprentice receiving training in the Railways could be said to be engaged in a trade for the purpose of Section 168, I.P.C.

2. In order to appreciate the question involved, it will be worthwhile to refer to the salient facts of this case. The petitioner before the court Maheshkumar Dhirajlal Thakkar was serving as a tracer in the office of the Sub-divisional Soil Conservation Officer (Survey) Bhavnagar, from 13th December 1965 upto 6th February 1968. While he continued as a tracer in the said office, he applied on 9th January 1967 to the Railway authorities Bhavnagar Para for receiving training as an apprentice Electrical Signal Maintainer in the prescribed proforma. He was then appointed an apprentice Electrical Signal maintainer on 24th November 1967 by the Divisional Assistant Signal and Telecommunication Engineer, Western Railway, Bhavnagar Para. It transpires that the accused-petitioner obtained leave from the Sub-divisional Soil Conservation officer from 13th December 1967 to 5th February 1968 and joined as an apprentice for receiving training at Ajmer. It was alleged that after completing the training, the accused obtained leave from the Western Railway from 5th February to 10th February 1968 and resumed his office of the Sub-divisional Soil Conservation officer at Bhavnagar and resigned from that service with effect from 6th February 1968. The prosecution case is that the accused had obtained pay and allowances from the Soil Conservation office at Bhavnagar and also from the Western Railway authorities for the period from 15th December 1968 to 6th February 1968. It was alleged that under Rule 21 of the Bombay Civil Services, Conduct, Discipline and Appeal Rules, the accused was prohibited from engaging in any trade or from undertaking any employment while on duty without the previous sanction of the Government. It is also alleged that the accused was prohibited as such under Rule 15 of the Railway Service Conduct Rules, 1966 to obtain any employment while on duty without the previous sanction of the Central Government. According to the prosecution, therefore, the accused has committed an offence under Section 168 of the Indian Penal Code.

3. It may be noted that the accused (present petitioner) entered into an agreement Ex. 69 with the Railway at the time of his appointment as an apprentice Electrical Signal maintainer. In the agreement, he has been described as an apprentice, who with the consent of the party of the second part bound himself to serve Government as a trade apprentice in any office situated on the Western Railway for a period of one year commencing from 15th December 1967. Under the terms of the agreement, the petitioner was to receive a monthly stipend at the rate of Rs. 110/- for the first year and Rs. 113/- per month for the second year. Under note No. 1 of the said agreement, the Government had an option to decide on individual merits whether the apprentice should be allowed to continue to receive the training by withdrawing his stipend in case it was considered that he had failed to complete the prescribed training satisfactorily. Clause 6 of the agreement stated that:

The apprentice shall devote his/her whole time to the training and shall not carry on or be concerned in any other trade or business or occupation whatsoever.

Clause 8 states:

The apprentice shall conform to all the rules and Regulations of the Department to which he/she may be attached for training at any time and shall obey all such orders and direction as he/she shall from time to time receive from the officer and/ or officers placed in authority above him.

Clause 11 says:

The apprentice will not during the period of apprenticeship be allowed to subscribe to the State Railway Provident Fund. The period of apprenticeship will not count for pensionary benefits.

Clause 17 states

The apprentice shall undergo training for such trade or trades as may be specified in terms of Clause (1) hereof. No guarantee or promise of employment, temporary or permanent, on completion of apprenticeship, is given or implied by the Railway Administration. But on the successful completion of the apprenticeship, the Apprentice shall (if he is so required) serve the Railway Administration faithfully and efficiently for a minimum period of five years (subject to earlier determination at the sole discretion of the Railway Administration) in any capacity for which he/she may be Considered fit and on the scale of pay and on the terms and conditions which may be in force from time to time during the tenure of his/her employment under the Railway Administration.

As already stated above, the petitioner after completing the training resumed his duty on the post for a day and resigned with effect from the next day. On these facts, he was charge-sheeted in the court of the learned Special Judicial Magistrate, First class, Narol and the learned Magistrate convicted him under Section 168, I.P.Code and sentenced him to pay a fine of Rs. 60/- in default, S.I. for two weeks. Against that order of conviction and sentence, he preferred an appeal in the Sessions court, Ahmedabad (rural) at Narol and the learned Sessions Judge after considering all the arguments advanced by the learned Advocates for the parties, confirmed the order of conviction and sentence passed by the learned Magistrate and dismissed the appeal. The petitioner, therefore, has preferred the present revision application to this Court.

4. Mr. H.B. Shah, learned Advocate for the petitioner submitted that if, one refers to the wording of Section 168, I.P.C., in the proper perspective, it will be clear that it could not include the question of apprenticeship at all. He urged that the apprentice could not be said to be a worker employed by the Railway. He specifically invited my attention to the agreement Ex. 69, referred to above, and urged that throughout the petitioner was described as an apprentice in the agreement and Clause 17 thereof specifically stated that the Government did not guarantee any employment to the apprentice after completion of the training. Under the circumstances, Mr. Shah submitted that the petitioner by no stretch of imagination could be said to be a public servant engaged in any trade during the period he was receiving training at Ajmer with the Railway administration. He invited my attention to the definition of 'apprentice' under the Apprenticeship Act' and the definition of 'trade' given in several dictionaries to which I will refer in due course. Relying on the definition of 'trade' as given in several dictionaries, Mr. Shah submitted that the apprentice could not be said to have been engaged in a trade. During the period of apprenticeship he was merely receiving training in order to make himself fit for a trade or occupation in which he may be subsequently absorbed. Mr. Shah, therefore, urged that the conviction of the petitioner under Section 168 of the Indian Penal Code could not be sustained. '

5. Mr. J.U. Mehta, learned Assistant Government Pleader who appeared on behalf of the State on the other hand urged that the petitioner admittedly was serving as a tracer with the Government of Gujarat at the relevant time. He had not obtained any prior permission of the Government before entering into the contract of apprenticeship with the Railway Administration. He urged that under Rule 21 of the Bombay Civil Services, Conduct, Discipline and Appeal Rules, he could not without the prior sanction of the Government engage in any trade or undertake any employment while on duty or on leave other than his public duties. Mr. Mehta urged that even though the petitioner has been described as an apprentice in the agreement, Ex. 69, in fact, he was paid a stipend and was required to do all the work which he may be called upon to do by his officers under whom he was receiving training. Mr. Mehta, therefore, urged that for all practical purposes, the petitioner was a public servant engaged in a trade and merely because he was described as an apprentice in the agreement, Ex. 69, it cannot be said that his case did not fall within the purview of Section 168, I.P.C. He urged that the petitioner was a public servant as defined in the l.P.C. Thus, if the petitioner while he was a public servant, engaged in any trade, he would be guilty of an offence punishable under Section 168 of I.P.Code. He urged that the petitioner would be guilty both ways. While he was serving as a tracer, without the permission of the State Government, he entered into an agreement of apprenticeship with the Railway authorities and thereby committed an offence under Section 168, l.P.C. He would also be guilty for again resuming duty with the Government of Gujarat while he was actually working as an apprentice with the Railway Administration because under the agreement. Ex. 69, he was prohibited from engaging himself in a trade or employment while he continued receiving training. Mr. Mehta, therefore, supported the view taken by the learned Sessions Judge while confirming the order of conviction and sentence passed by learned Magistrate.

6. Section 168 of the Indian Penal Code states:

Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

It is not disputed that the petitioner was a public servant as defined in Section 21 of the I.P.C. while he was serving as a tracer at Bhavnagar. It is also not disputed before me that under Rule 21 of the Bombay Civil Services, Conduct, Discipline and Appeal Rules, he could not without the previous sanction of the Government, engage in any trade or undertake any employment while on duty or on leave other than public duties. The pertinent question which arises for my consideration is whether the petitioner who while he was working as a tracer entered into an agreement of apprenticeship with the Railway Administration could be said to have engaged in a trade. The connotation of the words 'engage in a trade' has been defined at great length by the Division Bench of the Bombay High Court in the case of Mulshanker Maganlal Vyas v. Government of Bombay 52, B.L.R. 648. In Wharton's Law Lexicon, the expression 'trade' has been referred to as meaning 'the exchange of goods for other goods, or for money.' The other meanings which have been assigned by Wharton to this word 'trade' are 'traffic, intercourse, commerce.' In Webster's Dictionary, the word 'trade' has been assigned several meanings some of which are- 'to sell or exchange, to buy and sell, to barter; to traffic as a business; to be engaged in the exchange, purchase or sale of goods, wares, merchandise, or anything else.' 'Trade' according to Aiyar, means the craft or business which a person has learned and which he carries on as a means of livelihood.' In Halsbury's Laws of England vol. 32, Article 487, the secondary meaning of the word 'trade' is given as 'any business carried on with a view to profit.' It was also pointed out therein that 'the word is one of very general application and must always be considered with the kind of trade, business, profession or occupation.' Relying on these definitions, the Bombay High Court observed:

The word 'trade' as used in Section 168 of the Indian Penal Code, 1860 and Rule 21 of the Bombay Civil Services Conduct, Discipline and Appeal Rules, must be construed in a wider sense, so as to cover every kind of trade, business, profession or occupation. It covers also the making for payment of plans and estimates for waterworks and drainage schemes by an officer employed in the Government Public Health Engineer's office, whose duty it is to handle such schemes.

Adopting this definition of 'trade' as interpreted by the Bombay High Court with which I am in respectful agreement, the word 'trade' would include 'every kind of trade, business, profession or occupation'. The question, therefore, now which is to be answered in relation to the definition of 'trade' as given by the Bombay High Court, is whether the petitioner who had entered into an agreement of apprenticeship with the Railway Administration could be said to be engaged in a trade, business, profession or occupation. My answer is in the negative. In my opinion, the petitioner had entered into the said agreement with the sole purpose of receiving training so that on completion of the said training, he could be employed by the Railway Administration. So long as he was working as an apprentice, he was not a worker of the Railway Administration. Merely because he was paid a stipend, it cannot be said that he was an employee of the Railway Administration. The agreement Ex. 69 clearly stated that he would not be eligible for the provident fund scheme. Clause 17 of the said agreement, Ex. 60, referred to earlier, categorically stated that the Railway administration did not bind itself to employ him on the completion of the training. It is thus clear that all throughout, the petitioner was treated as an apprentice whose sole object was to receive training under the instructions of the officer under whom he was placed. No doubt, during the period of apprenticeship, he was governed by the Railway Code for disciplinary action. But merely because he was governed by the Railway Code, it cannot be said that he become an employee of the Railway Administration. Section 3(7) of the Indian Railways Act defines a 'railway servant'. A railway servant means any person employed by the Railway Administration in connection with the service of Railways. In the light of this definition, could it be said that the present petitioner was employed by the Railway Administration in connection with the service of a Railway? As already observed above, the apprentice had merely to receive training as a Signal Maintainer and he was not employed by the Railway Administration in connection with the service of a railway. On the contrary, it was left to the discretion of the Railway Administration to employ him as a worker on completion of his training. It is thus clear that the apprentice was not considered to be a railway servant during the period of the apprenticeship as per agreement, Ex. 69.

7. Mr. Mehta, however, urged that as he was receiving stipend from the Railway Administration, and as he was required to do the work that may be shown to him during the period of his apprenticeship, he could be said to be a public servant as defined in Section 21 of the I.P. Code. He invited my attention to the case of Harbilas v. The Crown A.I.R. 1950, East Punjab, 167 wherein a Single Judge held that 'unpaid candidate in office of Deputy Commissioner assisting some clerk in work connected with duties of arms clerk is not a public servant.' Relying on the authority of this case, Mr. Mehta urged that only when the apprentice was not paid any stipend, he could not be said to be a public servant. I am unable to agree with him. The very connotation of the word 'apprentice' negatives such interpretation which is tried to be given by the learned Assistant Government Pleader. 'Apprentices, has been defined in the Apprentices Act, 1961. Section 2(a) states-'Apprentice means a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship.' In the instant case, the petitioner was undergoing apprenticeship training as a railway Signal Maintainer under the contract of apprenticeship, Ex. 69.

8. Mr. Mehta, learned Assistant Government Pleader submitted that the definition of apprentice as given in the Apprentices Act, 1961 could not be applicable in the present case because the said Act is made applicable only to designated trades. He invited my attention to chapter 38 of the Indian Railways Establishment Manual, Schedule I wherein designated trades are enumerated. He urged that the post of an apprentice Electrical Signal Maintainer is not shown as a designated trade and, therefore, the definition of apprentice given in the Act would not be material for the purpose of considering whether the petitioner had committed an offence punishable under Section 168 of the Indian Penal Code. I am unable to agree with the submissions made by Mr. Mehta. The petitioner undoubtedly was appointed as an apprentice under the agreement of apprenticeship Ex. 69 as an Electrical Signal Maintainer. It is, therefore, difficult to agree that the electrical Signal Maintainer was not a designated trade as stated in the Schedule I of the Railway Establishment Manual referred to above. In any case, this is a general definition which appears to be in consonance with the scheme under which the present petitioner was accepted for receiving training under the agreement, ex. 69. Apparently, he was not a railway servant as defined in the Indian Railway Establishment Code, Vol 1. Chapter 1, Rule 102 gives definitions. Clause 13 of the said rule defines a railway servant. A railway servant means-'A person who is a member of the service or who holds a post under the Administrative control of the Railway Board and includes a person who holds post in the Railway Board.' It cannot be said that the petitioner was a railway servant who was a member of the service or who held post under the administrative control of the Railway Board. Only for the purpose of disciplinary action, he was made liable under the Code. That would not mean that he was considered as a railway servant as defined in Clause 13 of Rule 102, referred to above. Indian Railway Establishment Code, Vol. II, Rule 2202, Sub-rule (2) defines 'apprentice'. Apprentice means a person deputed for training in a trade or business with a view to employment in Government service, who draws pay at monthly rates from Government during such training but is not employed in or against a substantive vacancy in the cadre of a department. Thus, even if the apprentice receives some payment in the nature of stipend, he cannot be said to be a railway servant as defined in the Code. The definition of 'apprentice' as given in the Code is very wide. 'Apprentice' means a person who is employed for the training in a trade or business with a view to employment in Government service. Thus as stated, such a person may draw pay at the monthly rate during such training but he is not employed in or against a substantive vacancy in the cadre of a department. The very fact that this definition states that the apprentice would mean a person deputed for training in a trade or business with a view to employment in Government service, would clearly rule out the interpretation put by Mr. Mehta that an apprentice receiving pay or stipend would be deemed to be in the employment of the Government. This definition clearly states that a person is employed for training with a view to employment in Government service. Reading the definition of 'railway servant' and 'apprentice' as given in the Code and the definition of 'apprentice' as given in the Apprenticeship Act, I am of the view that the present petitioner could not be said to be a railway servant at all, during the period of his training.

9. The next question which would arise for my consideration is whether he could be said to be engaged in any trade while he was receiving training as a Signal Maintainer. I have already referred to several definitions of 'trade' and in none of the said definitions, position of the present petitioner would fit in. It cannot be said that during the period of apprenticeship, the petitioner was carrying on any trade as means of livelihood. It cannot be said that he had engaged himself in any trade, business, occupation or profession with a motive of profit. In my view, therefore, the learned Sessions Judge had clearly erred in holding that the present petitioner had engaged himself in a trade while he was receiving training as per the agreement, Ex. 69 with the Indian Railways. In my opinion, he worked there purely as an apprentice for the purpose of receiving training so as to be employed as a Signal Maintainer on completion of the training, if the Railway Administration thought fit to employ him. But so long as he was receiving training, he cannot be said to be a railway servant or railway worker. It would be stretching connotation of the words 'engaged in trade' if the same was applied to the persons receiving training in particular trade or occupation. It may be that the present petitioner when he entered into an agreement of apprenticeship with the Indian Railways without the permission of the Department concerned, may be liable for departmental action. This court is not concerned with that aspect of the case at this stage. So far as the provisions of Section 168, I.P.C. are concerned, it cannot be said that the petitioner had engaged himself in any trade when he worked as an apprentice under the agreement, Ex. 69. Under the circumstances, the order of conviction and sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge in appeal could not be sustained.

10. I, therefore, pass the following order:

The revision application, is allowed. The order passed by the learned Special Judicial Magistrate, First class, Narol convicting the present petitioner for an offence punishable under Section 168, I.P.C. and sentencing him to pay a fine of Rs. 60/- in default S.I. for two weeks confirmed by the learned Sessions Judge in appeal is hereby set aside and the accused is acquitted of the offence charged. Fine, if paid, is ordered to be refunded.


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