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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.

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.

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.

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.