Decided on July 27,1973

STATE Respondents

Referred Judgements :-



A.A.DAVE - (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 sec. 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 1967to 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 Tele-communication 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 6 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 sec. 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 1967Under 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 all (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 sec. 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 arid 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.

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