P L D 1961 (W (PLP)

On the 15th of May 1961, I had recorded the following order in this case :‑- "I had reserved judgment to consider the import of the word "trade" used in section 168 of the Penal Code. No direct authority was cited at the Bar to guide me in its interpretation and the question which engaged my attention was whether, to give it a restricted meaning of a "mercantile occupation for profit", as it is understood in its specialised modern sense, or to give it a wider meaning of any profession, business, or calling carried on as a means of livelihood. "Occurring as it does in a penal statute, I should prefer a narrower and a restricted meaning, and as the matter is likely to affect a large number of public servants, who may be found to be similarly situated like the appellant, and in view of the absence of a direct authority, I had half a mind to refer this point for decision to a larger Bench. But another considera tion has prevailed with me not to follow that course. It is this. Section 168 of the Penal Code is not complete in itself depending for fruition on other enactments or regulations prohibiting the public servants from following other profit making activities, and whether a particular activity falls under the "ban" as a "trade" within the meaning of section 168 depends on the prohibitive measure itself. In an extended sense the word "trade" used in section 168 belonging to the same stock as the word "tread" assumes a wider connotation, meaning "a path or a way of life or occupation." In the present case, it is not shown, whether the appellant wag legally bound according to the terms of his ‑service or the rules governing him not to engage in any trade or employment during the period of his leave from his official job. The question did not attract any importance, as the appellant had pleaded guilty to the charge. Inform the learned counsel for the appellant, Sh. Muhammad Shafi, and Mr. Saeed, the State counsel, to address me on this aspect of the case . . . . . ."

2. The learned ‑counsel have addressed arguments on the points raised in the order. They agree that the appellant being a civil servant was governed in his service conduct by Rule 13 of Appendix 23 of the Civil Services Rules (Punjab), Volume I, which is to the following effect :‑ "

13. No Government servant shall, except with the previous sanction of the Government, engage in any trade or undertake any employment or work, other than his official duties: Provided that a Government servant may, without such sanction undertake honorary work of a social or charitable nature or occasional work of a literary or artistic character, subject to the condition that his official duties do not thereby suffer but he shall not undertake, or shall discontinue such work if so directed by the Government." The question that arises is whether the appellant was legally bound to obey this Rule and a breach thereof brings him within the mischief of section 168 of the Penal Code. Section 168 reads as follows :‑ "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." The phrase "legally bound to do" is defined in section 43 of the Penal Code in the following words :‑ "The word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action ; and a person is said to be 'legally bound to do' whatever it is illegal in him to omit." The contention of the learned counsel for the appellant is that the appellant was not legally bound to obey Rule 13 cited above, since its breach is not illegal as it does not amount to an offence, and it is not prohibited by any law, nor does it furnish a ground for a civil action. The second argument employed by him is that even if the appellant be held to be legally bound to obey this, rules; his action in taking employment as a Clerk (Accountant) with a private firm (Shah Nawaz Ltd.) during his leave period as a Government servant did not amount to his "engagement in a trade" to bring him within the purview of section lt)8 of the Penal Code.

3. As for the first argument, the learned counsel has urged that the action of the appellant is, at the worst, a breach of a departmental direction not possessing any of the ingredients of an illegal act or omission. I am inclined to agree with him that the failure on the part of the appellant to comply with this Rule did not amount to an offence, not having been made B punishable under the Penal Code, or any other special or local law. But I find it difficult to go further to agree with the learned counsel that the impugned Act on the part of the appellant is not prohibited by law and does not furnish a ground for a civil action. In my view the action of the appellant in entering into the service of a private firm while he was on leave in the service of the Government was prohibited by law, being in violation .of Rule 13 cited above. This is a statutory rule made under section 96‑B of the Government of India Act, C 1919, and is couched in terms of absolute prohibition. It is difficult to contend that in its effect, it does not carry a legal prohibition. At the same time I consider that a breach of the rule on the part of the appellant who was bound by it, did furnish a ground for the Government for ‑recovery of damages in a civil action by way of a suit for damages. Tee words used D by the legislature, "furnish ground for a civil action" bear a wide connotation. It is enough if a ground is furnished for a civil action, and whether it succeeds or not is a separate matter. Prima facie it would be a case of breach of faith and breach of contract. I, therefore, hold that the appellant was legally bound to obey Rule 13 cited above binding him not to engage himself in any trade, employment, or work, during the time that he was in Government service.

4. As for the second argument of the learned counsel that the appellant's employment with the firm was not an "engagement in trade" falling within the ambit of section 168, P. P. C. I am of the opinion that the word "trade" in the context used in section 168, P. P. C., and also in Rule 13 of the Services Rules cited above carries the meaning of any "calling or profession taken F up for purposes of livelihood." The addition of the word "employment" or "work" in the Rule to the word "trade" mere tautology employed for emphasis.

5. The learned counsel have drawn my attention to the various definitions of the word "trade". In Wharton's Law Lexicon, the expression has been referred to as meaning "exchange of goods for other goods, or for money." Other meanings assigned to it are "traffic : intercourse ; commerce." Aiyyar in his Law Lexicon of British India has expressed the view that the word "trade" in its ordinary sense means "exchange of goods for money or goods for goods with the object of making profits", although in general signification the term means "traffic or merchandise or a private art, or a way of living, craft or business which a person has learned or, carries on as a means of livelihood". According to Halsbury's Laws of England (Edition 2, Volume XXXII, page 303), the word "trade" in its primary meaning means the exchanging of goods for goods or goods for money.

6. In Webster's Dictionary, the word "trade" is shown to have the meaning of "occupation, employment, or activity, business of any kind, any occupation or employment pursued as a calling, business ; the business which a man has learned and by which he earns his livelihood." At page 317 of Volume of "Words and Phrases Judicially Defined," it is stated as follows :‑ "Although in a great many contexts the word `trade' indicates a process of buying and selling, that is by no means an exhaustive definition of its meaning. It may also mean a calling or industry or class of skilled labour." Considering all the various meanings and shades of meanings of term "trade", I have formed the view that in the context in which this word is used in section 168, P. Y. C. it is not confined to the restricted and specialised meaning of mercantile operations or commercial transactions, but carries the extended signification of any calling or profession taken up as a means of livelihood. By enacting section 168, the intention of the legislature seems to be to punish divided loyalty in official work on the part of Government servants and to restrict their time and devotion to the official duties, barring them from any other lucrative occupation as long as they remain in Government service. It does not appear logical that while trade in the sense of mercantile operations or commercial transactions was penalised, the other occupations were not, though they may distract Government servants far more in their work and devotion to their official duties. The distinction sought to be created from the view point of the "intent and purpose of the section, is to my mind unreal. In this view of the matter, I consider that the conviction of the appellant is not open to any objection. I uphold his conviction and sentence of Rs. 1,000 as fine, or in default three months' simple imprisonment, and dismiss his appeal. K. M. A.Appeal dismissed.