Bhagwati, J.

1. This Appeal with a certificate of fitness under Art.134 (1)(c) of the Const. against the decision of the Judicial Commissioner at Ajmer raises an important question as to the connotation of the word "officer" contained in S.21 (9), Penal Code.

2. The appellant was a Class III servant employed as a metal examiner, also called Chaser, in the Railway Carriage Workshops at Ajmer. He was charged under S.161, Penal Code with having accepted from one Nanak Singh currency notes of the value of Rs.150 as illegal gratification as a motive for securing a job for one Kallu. He was also charged under S.5(1)(d) of Act 2 of 1947 with abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantage in the shape of Rs.150 from the said Nanak Singh. He was further charged with having committed an offence under S.420, Penal Code for having induced the said Nanak Singh to deliver to him currency notes of the value of Rs.150 by dishonest representation that he could secure a job for the said Kallu. The learned Special Judge, State of Ajmer, who tried him in the first instance for the said offences convicted him of the offence under S.161, Penal Code as also the offence under S.5 (1)(d) of Act 2 of 1947 and sentenced him to suffer rigorous imprisonment for six months and one year respectively in regard to the same, both the sentences to run concurrently. In so far, however, as it was not proved that the appellant did not believe when he accepted the money that he could secure or would try to secure a job for Kallu, it was held that no case under S. 420, Penal Code was made out and he was acquitted of that charge.

3. The appeal taken to the Judicial Commissioner, State of Ajmer, by the appellant failed and on 10-12-1954, the learned Judicial Commissioner granted to the appellant a certificate of fitness for appeal on two main grounds, viz. (1) whether the appellant was an "officer" within the meaning of cl. (9) of S.21, Penal Code, and (2) whether the provisions of S.137, Railways Act excluded all railway servants from the definition of public servants except for purposes of Chapter 9, Penal Code.

4. Concurrent findings of fact were reached by both the Courts below on the question as to whether the appellant accepted Rs.150 from Nanak Singh as and by way of illegal gratification and these findings could not be and were not challenged before us by the learned counsel for the appellant. The only questions which were canvassed before us were the two legal points which formed the basis of the certificate of fitness for appeal granted by the learned Judicial Commissioner, State of Ajmer, to the appellant.

5. The second question has now become academical in the facts of the present case by virtue of a decision of this Court in Ram Krishan v. State of Delhi, (S) AIR 1956 S. C. 476 (A) which lays down that before the amendment of S.137, Railways Act by Act 17 of 1955 railway servants were treated as public servants only for the purposes of Chapter 9, Penal Code, but in any event they were public servants under the Prevention of Corruption Act (Act 2 of 1947). In so far as the appellant has, in our opinion, been rightly convicted of the offence under S.5 (1) (d) of Act 2 of 1947 and awarded the sentence of rigorous imprisonment for one year, the question whether he, was rightly convicted of the offence under S.161, Penal Code for which he was awarded the lesser sentence of six months rigorous imprisonment has become merely academical and the only question which remains to be considered by us here is whether he was an "officer" within the meaning of S.21 (9), Penal Code.

6. The provisions of law in regard to the first question may be conveniently set out at this stage: -

7. Section 2. Prevention of Corruption Act 2 of 1947 provides :-

"for the purposes of this Act public servant means a public servant as defined in S. 21, Penal Code."

8. Section 21, Penal code provides so far as is relevant for the purposes of the present appeal: -

"The words public servant denote a person falling under any of the descriptions hereinafter following, namely,

.................................................

Ninth ............ and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty."

9. There is no doubt that the appellant was in the service or pay of the Government and was performing the duty of a metal examiner known as Chaser in the Railway Carriage Workshops at Ajmer and was thus performing a public duty.

10. It was, however, contended that the appellant was not an officer within the meaning of that term as used in S.21(9), Penal Code. An officer, it was contented, on the authority of Reg. v. Ramajirao Jivbaji, 12 Bom H C R 1 (B), meant one to whom was delegated by the supreme authority some portion of its regulating and coercive powers and who was appointed to represent the State in its relations to individual subjects. According to the dictum of West J., the word "officer" meant some person employed to exercise to some extent and in certain circumstances a delegated function of Government. He was either himself armed with some authority or representative character or his duties were immediately auxiliary to those of some one who was so armed. It was, therefore. contended that the appellant being a metal examiner known as Chaser in the Railway Carriage Workshops had not delegated to him by the supreme authority some portion of its regulating and coercive powers nor was he appointed to represent the State in its relations to individual subjects. He was neither armed with some authority or representative character nor were his duties immediately auxiliary to those of some one who was so armed. He was not employed to exercise to some extent and in certain circumstances the delegated function of Government and, therefore, was not an "officer" within the meaning of that term as used in S.21 (9), Penal Code. If he was thus not an officer of the Government, he could not be a public servant within the meaning of S.2l, Penal Code nor could he be a public servants for the purposes of Act 2 of 1947 and could not be convicted of the offence under S.5(1)(d) of Act 2 of 1947.

11. It has to be noted, however, that the case before the learned Judges of the High Court of Bombay in 12 Bom HCR 1(B), concerned an Izaphatdar, that is a lessee, of a village who had undertaken to keep an account of its forest revenue and pay a certain proportion to the Government, keeping the remainder for himself and the question that arose for the consideration of the Court was whether such a person was an officer within the meaning of S.21 (9), Penal Code. It was in this context that the aforesaid observations were made by West J., and the Court came to the conclusion that Deshmukhs and Deshpandes would be sufficiently within the meaning of the clause they being appointed to perform for the State a portion of its functions or to aid those who were its active representatives but not so an lzaphatdar or the lessee such as the accused. He was not an officer but a mere contractor bound by his engagement but not by the terms of his office or employment to pay a certain proportion to the Government. There was no delegation to him of any authority for coercion or interference nor was he an assistant appointed to help any one who was vested with such authority. The duties which he performed were contractual duties fraudulent deception in the discharge of which might subject him to punishment for cheating but not duties attached to any office conferred on him or his predecessor in title, failure to perform which with integrity could make him liable, as an officer, to the special penalties prescribed for delinquent public servants.

12. This decision in 12 Bom HCR 1 (B) came to be considered by the Calcutta High Court inNazamuddin v. Queen-EmpressILR 28 Cal 344 [LQ/CalHC/1900/106] (C). The petitioner in that cast was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under S.161, Penal Code. The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of cl. (9) of S.21, Penal Code which declared "every officer in the service or pay of Govt." was a public servant because he was not an officer. The case of 12 Bom HCR 1 (B) was cited in support of that contention and the learned Judges of the Calcutta high Court observed at page 346 as under:

"The learned judges in that case had to consider whether a lessee from government was on the conditions of his lease a public servant, and of the term "officer". It was there held that an officer means, some person employed to exercise to some extent and in certain circumstances delegated functions of government. He is either armed with some authority or representative character, or his duties are immediately auxiliary to those who is so armed."

The meaning which we are asked to put on those words seem to us to be too narrow as applied to the present case. The peon who has been convicted as a public servant is in service and pay of the Government, and he is attached to the office of the Superintendent of the Salt Department. The exact nature of his duties is not stated, because this objection was not taken at the trial, but we must take it that, from the nature of his appointment, it was his duty to carry out the orders of his official superior, who undoubtedly is a public servant, and in that capacity to assist the Superintendent in the performance of the public duties of his office. In that sense he would be an officer of the government, although he might not possibly exercise "any delegated function of the Government". Still his duties would be "Immediately auxiliary to those of the Superintendent who is so armed". We think that an "officer in the service or pay of Government" within the terms of S.21, Penal Code is one who is appointed to some office for the performance of some public duty. In this sense the peon would come within S.21, Cl. 9."

13. The true test, therefore, in order to determine whether a person is an officer of the Government is:

(1) whether he is in the service or pay of the Government, and

(2) whether he is entrusted with the performance of any public duty.If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed.As has been stated in Bacons Abridgement at Vol. 6, page 2, in the article headed "Of the nature of an officer and the several kinds of officers."

"The words officium principally implies a duty and in the next place, the charge of such duty; and that it is a rule that where one man hath to do with anothers affairs against his will, and without his leave, that this is an office, and he who is in it is an officer."

The next paragraph thereafter may also be referred to in this context:

"There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, and c.; which differ widely from that of steward of a manor" and c. (Vide 12 Bom HC R1 at page 5 (B).)

14. This was the sense in which the decision in 12 Bom H C R 1(B), was understood by the learned Judges of the Lahore High Court in Ahad Shah v. Emperor, A. I. R.1918 Lah 152(2)(D), when they observed at page 157:

"But it is not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning of S.21 (ninthly), I. P. C. He must also be an "Officer". That expression is not, of course, to be restricted to its colloquial meaning of a Commissioned or non-Commissioned Officer; it means a functionary or holder of some officium or office. The office may be one of dignity or importance; it may equally be humble. But whatever its nature, it is essential that the person holding the office, should have in some degree delegated to him certain functions of Government".

The question for consideration before the learned Judges of the Lahore High Court was whether a Quarter Masters clerk was a public servant within the meaning of that expression in S.2l, Penal Code. On the facts elicited before them the learned Judges came to the conclusion that the Quarter Masters clerk as such was just a Babu and no more an officer than a labourer or menial employed and paid by Government to do public work (See Queen v. Nachimuttu, I.L.R. 7 Mad. 18 (E)).

15. If therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the Govt. but is also performing a public duty, he has delegated to him the functions of the Govt. or is in any event performing duties immediately auxiliary to those of some one who is an officer of the Govt. and is therefore an officer of the Govt. within the meaning of S.21 (9), Penal Code.

16. Applying this test to the facts of the case before us, we find that the appellant was a Class III servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshop. He was working under the Works Manager who was certainly an officer of the Govt. and the duties, which he performed, were immediately auxiliary to those of the Works Manager who, beside being an officer of the Govt. was also armed with some authority or representative character qua the Govt..The appellant was thus, even on a narrow interpretation of the dicta of West J. in 12 Bom HCR1 (B), an officer in the service or pay of the Govt. performing as such a public duty entrusted to him by the Govt. and was therefore, a public servant within the meaning of S.2l, Penal Code.

17. This being the true legal position, this contention of the appellant also does not avail him and the first question must be answered against him.

18. The appellant was, therefore, an officer within the meaning of S.21 (9) and therefore a public servant within the meaning of S.21, Penal Code, and being such public servant he fell within the definition of a public servant contained in S.2, Prevention of Corruption Act, 2 of 1947. He was, therefore, on the facts and circumstances of the case, rightly convicted under S.5 (1)(d) of Act 2 of 1947. His conviction and the sentence imposed upon him by the Courts below were therefore quite in order and this appeal must therefore stand dismissed.

19. Appeal dismissed.