JUDGMENT <NAME>, J.

1. <ORG>, Cochin Bench, has made this reference and the question referred is :

" Whether, on the facts and in the circumstances of the case, the proceedings initiated under Section 147(b) of the Income-tax Act, 1961, are legal and valid?"

2. The reference relates to the assessment year 1963-64, the relevant previous year being 1137 M.E. The original assessment was completed on March 16,1964. The Income-tax Officer subsequently reopened the assessment under Section 147(b) of the Income-tax Act, 1961 (hereinafter to be referred to as " the Act") on the ground that the capital gains arising to the assessee on account of the transfer of a property had not been brought to tax. Following facts are relevant in this connection:

A property by name <NAME> belonged originally to the assessee's wife, <NAME>. She died on October 21, 1954, leaving a will whereby the property was bequeathed to her 4 daughters, <NAME>, <NAME>, <NAME> and <NAME> in equal shares. <NAME> and <NAME> sold their interest in the property to the assessee on January 30, 1958, for Rs. 10,000, Thus, one-half of the entire property devolved on the assessee. He then sold this one-half interest in the property to his daughter, <NAME>, on September 5, 1961, for Rs. 40,000. In the reassessment the capital gains sought to be assessed was the difference between the selling price of Rs. 40,000 and the purchase price of Rs. 10,000, namely, Rs. 30,000. At the time of the original assessment it was contended before the Income-tax Officer that in the estate duty proceedings following the death of assessee's wife, the property had been valued at Rs. 42,680. So, the value of the one-half share which the assessee had purchased was Rs. 21,340. On this basis the capital gains arising in the transaction was treated as Rs. 18,660 (Rs. 40,000--21,340). It was also alleged that the assessee had put up a building worth Rs. 10,000 in 1957 and from the amount of Rs. 18,660 this amount of Rs. 10,000 had to be deducted. The Income-tax Officer accepted these contentions and brought to tax as capital gains only the amount of Rs. 8,660. During the reassessment proceedings under Section 147(b) the Income-tax Officer held that since the assessee had purchased the half share in the property only in 1958, the cost of the building alleged to have been put up in 1957 could not be treated as an improvement within the meaning of Section 48 and that the market value of the property as fixed in the estate duty proceedings could not be taken as the amount for which the property had been purchased by the assessee. The Income-tax Officer, therefore, came to the conclusion that the income chargeable to tax had escaped assessment. He, accordingly, brought to tax the amount of Rs. 30,000 as capital gains.

3. Section 147 of the Act is to the following effect: "If-

(a) the Income-tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under Section 139 for any assessment year to the Income-tax Officer, or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or

(b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year

4. The point for consideration is what would consitute " information " within the meaning of Section 147(b) (34(1)(b) of the old Act). This is a vexed question and to use the words of <NAME> in <CITATION> .,  74 I.T.R. 107 (Cal.), still remains a rich germinating ground for forensic Arguments. Even though there is no decision directly on the point, guidelines are supplied by some of the decisions of <ORG> and the various <ORG> cited at the <ORG>. Decisions are, however, uniform on the points to be satisfied before a reassessment under Section 147 can be resorted to, and they are :

(1) The Income-tax Officer should receive information after the original assessment; and (2) In consequence of such information he should reasonably believe that the income chargeable to tax has escaped assessment.

5. Information, in the present case, is a communication from the audit party pointing out under the relevant provisions of the Act that it was wrong to have allowed the market value of the property, namely, Rs. 21,340, to be substituted for the consideration of Rs. 10,000 paid and that the application of Section 52(2) was not justified as the assessee neither possessed the property before January 1, 1954, nor received it as a gift from one who possessed it before January 1, 1954. It was also pointed out that the property having been purchased by the assessee in 1958, cost of improvements, if any, effected thereafter, alone could be deducted and the alleged improvements had been effected in 1957, when the assessee had no rights over the property. It was on this information, according to the revenue, that the Income-tax Officer entertained the plea that the income had escaped assessment.

6. <ORG> has observed in <CITATION> .,  67 I.T.R. 11;  1 S.C.R. 10 (S.C.):

".... that 'information in the context it occurs in Section 147(b) must mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment. Mere change of opinion on the part of the Income-tax Officer cannot constitute information so as to empower the Income-tax Officer to start proceedings under Section 147(b) ."

7. Information may be in respect of facts or particulars or it may be as to the correct state of the law, but it must be from an extraneous source as distinguished from a mere change of opinion. The revenue favours the view that no limitation could justifiably be placed on the nature or character of the external source from which communication as to the state of the law can be derived by the Income-tax Officer. Whether it be <ORG> or <ORG> or the <ORG> or the Appellate Assistant Commissioner or for the matter of that any person or authority, the communication would be information derived from an external source. On behalf of the assessee, on the other hand, the view is sought to be projected that instruction or knowledge as to the state of the law must be received from some judicial authority such as <ORG> or <ORG> which is competent to declare the law and whose decisions have the effect of binding precedents; if it is received from any other source it would not be " information " as to the state of the law within the meaning of Section 147(b) of the Act. This latter view gains support from the Gujarat High Court in <NAME> v. <NAME>, Income-tax Officer,  80 I.T.R. 188 (Guj.), and the former view is endorsed by <ORG> in <CITATION> ,  841.T.R. 584 (Delhi).

8. In elucidation of the point <ORG> in the aforesaid decision would point out that information or knowledge derived from an external source must be from a person, body or authority competent and authorised to give it. It must have an element of authority behind it. It must not be a mere information of some one who has no authority to pronounce upon the law. The audit department is not an authority competent and authorised to declare the correct state of the law or to pronounce upon it. In the above cited case, the facts relevant for our purpose are:

The petitioner (assessee) owned two items of immovable property, one in Ahmedabad and the other in Bombay. During the year of account (1965-66), both the properties were occupied by the petitioner (self-occupied properties). Petitioner claimed Rs. 4,052 to be deducted towards municipal tax in determining the annual value of the properties under Section 23(2) for computing the income of the properties under income from house property. Assessment was made in March, 1966. In July, 1969, the Income-tax Officer addressed a letter calling upon the petitioner to show cause why the amount of municipal tax allowed as deduction should not be added back on the ground that it was wrongly allowed. The assessee questioned the competency of the officer to reopen the assessment under Section 147 . The Income-tax Officer pointed out that income-tax assessments are subjected to audit by the office of the Comptroller and Auditor-General of India, and while auditing the assessment of the petitioner for assessment year 1965-66, the audit department had pointed out that on a true interpretation of Section 23(2) the deduction of municipal tax in respect of self-occupied properties was not admissible. This information, according to him, constituted information under Section 147(b) . The court held that opinion as to the state of the law by any and every person cannot constitute information, so as to entitle the Income-tax Officer to reopen an assessment.

9. The opposite view seems to have found favour with <ORG> as is seen from its decision in <CITATION> , mentioned already. , There, the original assessment of the assessee for 1960-61 was made by the Income-tax Officer, treating the assessee's income from bank deposits as earned income and accepting her claim for deduction of salary paid to her daughter-in-law as expenditure. Thereafter, the revenue audit staff working under the Comptroller and Auditor-General of India, while scrutinising the assessments, brought to the notice of the department that the Income-tax Officer had wrongly treated the interest income as business income, and had wrongly allowed the assessee's claim with regard to the salary paid to her daughter-in-law. Acting upon the scrutiny note of the Revenue Audit, the Inspecting Assistant Commissioner wrote to the Income-tax Officer to rectify the defects by reopening the assessment under Section 147(b) of the Act. Thereupon, the Income-tax Officer issued notices under the section and made reassessments. The court held :

(1) The scrutiny note of the Revenue Audit and the letter of the Inspecting Assistant Commissioner constituted " information " within the meaning of Section 147(b) from an " external source " and the assessments were, therefore, valid;

(2) The expression ' external source' used by <ORG> in <CITATION> . could not be restricted to opinions expressed or findings given by courts of law or the tribunal or other authorities under the Income-tax Act .

(3) Though the reassessment might be the result of a change of opinion on the part of the Income-tax Officer, the change of opinion was not on his own initiative or on his own reconsideration of the available material; it was one brought about as a result of information from an external source which came into his possession subsequent to the original assessments ; and (4) The Comptroller and Auditor-General of India has, the statutory right to scrutinise the proceedings of all departments of the Government including the income-tax department and to point out any defects or mistakes in such proceedings which adversely affect the revenues of the <ORG>. It is in the exercise of this statutory power that the Comptroller and Auditor-General of India, acting through his revenue audit staff, pointed out what he considered to be the errors committed by the Income-tax Officer in the original assessments.

10. We think that this decision reflects the correct view and has to be accepted in preference to the other view expressed by <ORG> referred to above. <ORG>, it must be remembered, did not pin-point or limit " external source " in <ORG>'s case to judgments of a particular court or authority. On the other hand, <ORG> has widened the scope and ambit of " external source " as is evident from the following observation in the judgment:

" Jurisdiction of the Income-tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information must, (1) [1968] 67 I.T.R. 11; [1968] 1 S.C.R. 10 (S.C.) it is true, have come into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby, or from other inquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected."

11. The point on which attention is to be focussed is as to whether the Income-tax Officer had acted on his own initiative or on 'the basis of the fact that the correct position was brought to his notice by some other authority within the scope of the section. No decision was brought to our notice which would in so many terms restrict the scope of " external source " to judgments or orders of courts and <ORG> under the Act. On the other hand, the courts have gone even to the extent of holding that mistakes pointed out by a subordinate or superior officer or an assessee would constitute information disclosed to the Income-tax Officer.

12. <CITATION> ,  42 I.T.R. 547, 564 (Mad.) a Division Bench of <ORG>, interpreting the scope of the word " information which has come into his possession " under the section, has observed:

" We are unable to accept the extreme proposition, that nothing that can be found in the record of the assessment, which itself would show escape of assessment or under-assessment, can be viewed as information which led to the belief that there has been escape from assessment or under-assessment. Suppose a mistake in the original order of assessment is not discovered by the Income-tax Officer himself on further scrutiny, but it is brought to his notice by another assessee or even by a subordinate or a superior officer, that would appear to be information disclosed to the Income-tax Officer. If the mistake itself is "not extraneous to the record and the informant gathered the information from the record, the "immediate source of information to the Income-tax Officer in such circumstances is in one sense extraneous to the record. It is difficult to accept the position that while what is seen by another in the record is ' information' what is seen by the Income-tax Officer himself is not ' information' to him. In the latter case, he just informs himself. It would be information in his possession within the meaning of Section 34 . In such cases of obvious mistakes apparent on the face of the record of the assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under-assessment."

13. The meaning of the word " information " came up again for consideration before <ORG> of this court, to which one of us was party, in <CITATION> ,  64 I.T.R. 218 (Ker.), where it was held that to "inform" means to impart knowledge and a detail available to the Income-tax Officer in the papers filed before him does not by its mere availability become an item of information ". It is transmuted into an item of information in his possession only if and when its existence is realised and its implications recognized. Applying that test to the case before them, the court held that the awareness of the Income-tax Officer for the first time after the assessment order of November, 1957f that the bonus shares were issued not out of premiums received in cash and the consequent result in the light of the Finance Act , 1957, was information within the meaning that expression is used, in Section 34(1) of the Indian Income-tax Act of 1922, and, consequently, the reopening of the assessment under that provision was not illegal. These two decisions, <ORG> y. Commissioner of Income-tax and <ORG>

<CITATION> , are quoted with approval by <ORG> in <CITATION> ,  21 S.T.C. 326;  1 S.C.R. 661; A.I.R. 1968 S.C. 565, On the same lines more or less, is the decision of this court in a later case, <CITATION> ] 85 I.T.R. 102,108(Ker.). There the assessment was in respect of a firm.

Previously there was another firm, the partners of which were one <NAME> and his three major and minor sons. That firm carried on business from January 1, 1959, to July 8, 1959, when <NAME> died. After that the new firm was constituted on July 15, 1959. There was no need for dissolving the old partnership. The Income-tax Officer originally treated these two firms as separate entities and passed two separate assessment orders. He assessed the old firm from January 1, 1959, to July 8, 1959, and the new one from July 15 1959, to December 31, 1959. Subsequently, the Income-tax Officer issued a notice under section 148 and initiated proceedings under Section 147(b) . That was on the basis of the information gathered from the auditor's inspection notes that the old firm was not dissolved but only reconstituted and so the income of the two firms should have been aggregated and only one assessment made. The assessee contended that on the death of <NAME> the firm stood dissolved and that the business carried on by that firm ceased to exist and a new firm was constituted on July 15, 1959, and so, the Income-tax Officer was not justified in clubbing together the income of the two periods. The contention was rejected, and reassessment was made. But, finally, the <ORG>, upholding the contention, held that the Income-tax Officer was not justified in reopening the assessment under Section 147(b) , as he had no information within the meaning of the sub-section. This court, reversing the decision of the <ORG>, observed :

"The Income-tax Officer cannot take any action under this section merely because he happens to change his opinion or to hold an opinion, different from that of his predecessor, on the same set of facts. But the word ' information' does not necessarily imply factual material in contradistinction to the legal aspect of the case. 'Information' may be factual, but the word also includes some cases of ' information' as to the state of the law. The decision of an appellate authority, for instance, under the Income-tax Act on the question as to which assessable entity is chargeable in respect of a particular income is an information on the strength of which the Income-tax Officer can act. The note put up by the audit to the effect that the assessment ought to have been made on the reconstituted firm for the entire income of the two periods, and, therefore, the Income-tax Officer committed an error, was instruction or knowledge derived from an external source and so it would constitute ' information' within the meaning of the term in Section 147(b) .............The Income-tax Officer was, therefore, perfectly competent to initiate proceedings under Section 147(b) ."

14. To sum up, the position thus is that " information ", whether factual or as regards the state of the law, should be extraneous, extraneous in the sense that it should suggest itself to the Income-tax Officer otherwise than by his own subsequent re-thinking. A change of opinion on 'his own reappraisal of the facts already before him cannot constitute "information" for the purpose of the section. But a mistake apparent on the face of the order of assessment would constitute " information" whether someone else supplied that information to the Income-tax Officer or whether he informed himself. An item of information available in the papers filed before the Income-tax Officer will become " information " only when its existence is realised and its implications are understood.

15. We are, therefore, of the view that the proceedings initiated in the present case under Section 147(b) on the basis of the audit note are legal and valid. Question answered in the affirmative.

16. A copy of this judgment will be sent under the seal of the court and the signature of the Registrar to <ORG>, Cochin Bench.


JUDGMENT <NAME>, J.

(1) What arises-for consideration in this case is the nature and extent of rights of the plaintiff in printed pencil boxes/cartons in which the pencils are being sold by the plaintiff.

(2) In this suit as well as in this application it is contended that the plaintiff is the registered owner of trademark bearing registration No. 324515-B dated 13th April, 1977. It is asserted that the said trade mark is valid, subsisting full legal force. Thattrade'rnark is in reject of fountain pens, pencils, ball pens and refills therefore, 'the registered trade mark in terms of the certificate, of registration in two words <ORG>.

(3) It is also asserted in the application, as also in the suit that the plaintiff is the owner of copyright in the floral design that appear on its printed cartons/boxes and that the design. thereon, in "original artistic work". It is also asserted that the respondents are passing off their goods as goods, of the plaintiff.

(4) It is asserted that the plaintiff is one of the largest manufacturer of art and stationery materials in India and have been exclusively marketing the goods of its manufacture for the past 40 years; that since the year 1977, the plaintiff has been manufacturing and selling their Camlin Flora Pencils in distinctive and artistic cartons.

(5) That distinctiveness, which is claimed, is that the pencil in question has got colour combination of white, pink and green,. that there are .two' strips of while and green next to each other at the rear portion of the pencil, that here is a floral design on the skin of the pencil, which is unique. The unique design comprises of array of pink flowers with a green leaf on the white background. It is also asserted that the same repetitive floral pattern, appears on the cartons. .

(6) The cartons, which .have been annexed Along with the plaint, as stated above, is a printed carton made of some kind of paper board.

(7) It .is also asserted that on account. of extensive, use of the words Camlin Flora on the pencil and the. carton /box vast reputation has been acquired, which denote .a high quality product originating exclusively from the applicant/plaintiff.

(8) It is asserted that the defendants are using deceptively similarly decorated pencil and carton,, which are deceptively similar to .the pencil-decorated with the flowers, and the-cartons which are, and have been in use, ofthe applicant/plaintiffs.

(9) It is asserted that the applicant had got a copyright in the artistic logo script of trade mark Flora as original artistic work.

(10) It is also asserted the application that that Camlin 's the house mark 'of the applicant, regarding Camlin being the house mark of the petitioner there have 'been no arguments urged during the course of hearing, and this question does not need consideration in this application. It may however be mentioned that Trade and Merchandise <NAME> Act does riot define the word 'House Mark'. The concept of House Mark is not to be found anywhere except in an administrative orders of Comptroller General <NAME> in 47RPC, 37, 43 L. 34 which cannot be given any recognition in India, in view of absence of such a concept in the statutory provisions. If is possible that at a future date when the industrialisation of India has resulted in Mega Corporations conglomerates that House Mark may need statutory/legal recognition by Courts. .

(11) The defendants contended that the application is not maintainable on account of unreasonable delay and laches on the part of the applicant/plaintiff and that the defendants' cartons bearing the word Captain Elora with numbers 1180 in connection with their pencil have been in use since 1-4-1981, and that the suit filed in 1985 is without any explanation of the delay Of four years. It is also asserted by the defendants that they are the registered owners of the carton "entitled" Captain Elora which is (registered at No. A-36907/82 under the Copyright Act , 1957 and that registration is still valid. It is asserted that- Elora and Flora are distinctive words. The word Flora indicates flowers. The word Elora refers to the famous caves.

(12) It is also asserted that the cartons used by the defendants and the plaintiff are absolutely distinct and different and there is no similarity between the two. .

(13) It is asserted that the defendants hold. registration of the .cartoons under-the Copyright Act but the plaintiff do not hold any such copyright.

(14) It is also asserted that the suit. which has been Sled, 58 false, frivolous and vexatious and is an attempt on the part of the plaintiff to put the defendants out of business and the market.

(15) What is required to be determined in this case is whether any copyright can exist in 'the subject-matter in which the same. is claimed. That is to say whether there is any copyright in the printed cartons in which the pencils of the plaintiff and defendants are sold (16) In order to determine whether copyright exists in the cartons, it is necessary to keep in view the legally .accepted meaning of 'copyright'. In essence. in law, copyright means the exclusive right to make copies of any copyrightable subject- matter in any tangible material form. Section 13 of the Copyright Act, 1957 which deals with subject-matter of copyright reads as under :

"1.Works in which copyright subsists: (1) Subject to the provisions of this section and the other, provisions of this Act, copyright shall subsist throughout India in the following classes, of work, that is to say (a) original literacy, dramatic, musical and artistic works; (b) cinematograph films; and (c) records. (2) Copyright shall not subsist in any work specified m sub-section(1), other than work 'to which the provisions of section 40 gr Section 41 apply, unless (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the. author is at the date of such publication or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than an architectural work of art, the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of an .architectural work of art, the work is located in India. Explanation. In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.

(3)Copyright shall not subsist:- (a) in any cinematograph film a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a literary dramatic or musical work, if in making the record, copyright in such work. has been infringed. (4) The copyright is a cinematograph film or a record, shall not affect the separate copyright in any work in respect of which or a substantial part of which, the file, or as the case may be, the; record is made. (5) In the case of an architectural work of art, copyright shall subsist only in the artistic character and design and shall not extent to processes or methods of construction.

(17) In this case, it is contended that the machine printed carton which are in question in which pencils are sold is covered by Section 13 of the Copyright Act, inasmuch as the carton is an "original artistic work"; it is further contended that being a original artistic work copyright subsists, therein, and the plaintiff is entitled to sue for infringement of the copyright in the cartons. .

(18) An examination of the carton would show that it is made out of some cardboard like material which has got printed matter thereon, the printed matter is .printed on the carton in different colours. The colours which are visible on the carton are green, white, red and black. Besides the printed colours on the cartons, what is also visible to the eye, is some printed words which have been impressed upon the carton. The printing of the carton has-been done by utilising any of the various printing processes by which multicolor impression can be applied to cardboard like paper.

(19) A look at the plaintiff's cartons also indicates that it contains the following words: - "FROM The Makers Of Camel Art Materials Contents of this box marked with price. <ORG> Flora 72HV Hexagonal Unbreakable Pencils Product NO. 1130" It is also written on the carton that the <NAME> (an illusturstration) referred to indicate a perfect bond of lead and wood to give an unbreakable point in normal use. (20) A look at the carton of the defendant shows that in addition to the various colours printed thereon there are the following words printed on it: "<ORG> Hb Hexagonal Deluxe Pencils Product No. 1180"

(21) It is clear that both the cartons are printed products, produced by a printing machine. My view that the carton is product of some kind of printing machine is strengthened by the fact that even in the plaint, it is asserted, the goods which are manufactured by the plaintiff are produced in very large quantities and the statement of sales of Camlin Flora Pencil indicate that pencil worth Rs. 1,24,65,552.00 were sold in the year 1982. Since each carton contains a small number of pencils it would riot b.e possible to accept that any process other than a printing process involving skilful use of hands, alone lias been utilised ia the making up of these multicolored cartons in which the pencils are being sold.

(22) In any case, it 'is clear to me that the cartons/boxes filed Along with the plaint could not have been made by an. artist utilising his skills with a paint and brush, (in addition to calligraphic skill). What is, therefore, to be determined Is whether sufficient skill and labor has been expended upon the cartons/ boxes to enable it to be covered by Section 13 of the Copyright Act.

(23) I had conveyed it' to counsels, during 'the coarse of arguments, that the card board appeared to be mechanically reproduced article, and that in order to qualify for being covered under the Copyright Act , the carton had to be 'original artistic work, that is to say, the carton must originate from an author who must-have expended his skill and labor upon it. This was put to the counsel for the plaintiff, in view ofthe judgment in 1964 Volume I All England Law Reports, 465 (equal to 1964 (1) Weekly Law Reports, 273) .(1). In that case <ORG>, relying upon the observations in an earlier judgment, said that in Copyright law, -'original' means that which originates from the athor. The observations relied upon by <ORG> contained in (1894) Ac 335 which reads as under:--- "THE word 'original' does not in this connexion mean that the work must be the expression of original or incentive thought, Copyright Act s are not concerned with the originality of ideas, but with the expression of -thought, and in the case of literary work. with in print or writing. The originality which the expression of thought in .print or writing. The originality is required relates to the expression of the thought. But the Act dots not require that expression must be in an original or novel from but that the work must not be copied from another work that it should originate from the. author.

(24) In order, therefore, to be covered by the Copyright Law, any work in which copyright is claimed .must originate-from the author. It also necessarily means, as indicated in the aforesaid passage, that the work in which, copyright is claimed must be something which has not been copied by the author from any one else. It is only when the work has not been copied, that it can be said that it has 'originated' from the author.

(25) As .1 have observed above, the cartons/boxes in question winch have been filed Along with the plaint, appear to be mechanically reproduced one. Because it is mechanically reproduced, I and of the view that it cannot be said that any skill or "labor has been expended upon the allegedly artistic carton which has been-filed in <ORG>, as the same has sheen produced by mechanical actions of.a printing machine, and not by skill and labor having been expended upon them by any natural person. It is .only natural persons who are, because of expenditure of their personal skill and labor upon any work, entitled to protection under the Copyright Law. [1924 <ORG> 75; 1960 (13 <ORG> 53(2).

(26) Because of the provisions of Order 7 Rule 14 (1) of the Civil Procedure Code, it is essential that the documents sued upon be filed with the plaint, in <ORG>; and 'document' in this case is printed boxes/cartons, filed in <ORG> In view of Order 7 Role 14, necessarily, the document sued upon is the machine printed carton which is filed in <ORG> by plaintiff. Inasmuch as the only document which has been filed is the machine printed carton, it must be taken, that the document produced in <ORG> is the original, and, it, has to be determined whether copyright can subsist therein under the Copyright Act .

(27) The counsel for the plaintiff relied upon a number of judgments wherein it was held that labels are copyrightable. It was urged on a parity of reasoning, that mechanically' printed boxes/cartons are copyrightable. He has referred to 1971 R.P.C. 57 (3): Charles <NAME> & Co. Ltd. v. <ORG>, wherein .it was said that there was a copyright in a label. In that case, it was contended by counsel for the plaintiff company that "the <NAME> label is an artistic work within the meaning of Section 3 of the Copyright Act". Justice <NAME>, who, decided the case, said that the label was an artistic work. He found "that label is admittedly an engraving, the design and layout of the label seems to me to be sufficiently distinctive to merit the description "original" within the meaning of Section 3 ". The learned Judge relied upon a judgment reported as 1959 R.P.C. 83 (4).: <CITATION> . .it appears to me that there was an admission in 1961 R.P.C. 57 (5) that .the label in question in that suit was an "engraving". By virtue of the provisions of Section 2(1) of the Indian Copyright Act, 1957, engraving is an artistic work. The label in that case, if it was an "engraving" would also be covered by the protection available to "engraving" under the Indian Copyright Act . According to <ORG> to engrave is "to cut with a graver on wood, steel etc.; to cut into, to impress deeply to form on represent by engraving". The boxes/cartons in question in this suit are not an "engraving". It was stated by counsel for the plaintiff that carton in the instant suit was printed by "Silk spinning process' and look and feel of the carton.shows that nothing has been "engraved" thereon. A product of silk printing process cannot 'be an engraving or a print from engraving. In my view, any print obtained from either an offset printing process or by a letter press or in combination of the various printing cess including silk printing process cannot amount to an engraving. In any case, the printed product like the one in question in the instant suit is not the result of any engraved material within the meaning of the word 'engraving as contained in Section 2 of the Copyright Act. The prints which are contemplated in that Section are the prints from an engraving, like artistic works like lithography, wood-cuts etc. (28) For the reason that in 1961 R.P.C. 57 supra the label was admitted to be an engraving, whereas the carton in question admittedly is not admitted to be an engraving, that case does not hep the petitioner as it does not apply to a printed carton reproduced by a mechanical process, which is the subject matter of this case.

(29) Counsel for the. plaintiff next referred to 1959 Rpc 83 (supra) <CITATION> that case, what was in question was a "sweet tin". The "sweet tins" were printed tins on which was reproduced the original, design made up by some artist What had happened was that <ORG> had copied the printed design/representation which was to be found on the tins of <ORG> in which they had sold sweets. The Court found, at page 87, that the plaintiff's design (which must refer to the original artistic work, and not what was reproduced on the tins was an "artistic work" within the meaning of Copyright Act . The Court found that the plaintiff's artistic work had been copied by the defendant's artist that the differences between the two were small differences, which did not create any substantial difference when examined as a whole. The Court came to the conclusion that "two designs in question were almost exactly similar. The arrangement is almost precisely the same, and the colours though in some cases perhaps slightly darker in the Defendants' design, are exactly similar otherwise, to the plaintiff's, and the series in which they appear in different colours is completely in accordance with the plaintiffs own arrangement. It became obvious to me, and it is now .accepted, that an artist. who was employed by <ORG> to produce a design to the defendants' whether goaded by the defendants or not, did in fact copy the plaintiff's design. It is quite incredible that the result should have been reached in any other way, and, therefore, the defendants' design is a copy of the plaintiff's design, with merely trifling additions in addition to the different background, done, it would appear, with the idea of trying to give the effect that it, was somebody else's effort'.

(30) It is not clear from the reported judgment whether original sketch/painting done by the plaintiffs' artist was produced in <ORG> or not. It, however, appears from the observations, which have been made, by Justice <NAME>, (reproduced above) that the original painting/sketch/drawing made by the plaintiff's artist was produced in <ORG>. No support can be derived by the counsel from this case. Inasmuch as 1959 Rpc 83 (supra.) appears to have proceeded on the basis-.of an original artistic work, which comprised of copyrightable subject matter, was relied upon by the plaintiff and filed in <ORG>.

(31) The counsel next relied upon 1961 Rpc 387 (6); <ORG> v. <ORG> In that. case, what was in question was the shape of 'Coca Cola' bottles, and the action was a passing off action. A penis' of the case- indicates that the said 'passing off' case was decided on the basis of concession made before the <ORG>. A case decided on concession can not be of any assistance to the plaintiffs herein, in any case, that matter related to, What was a design of bottle. and not an artistic work.

(32) The counsel then relied upon 1984 Fsr 210 (7): <ORG> LTD. and others v, <ORG>. The question in that case was labels on bottles. The label in quotation was the label of a soft mineral water drink, known as SCHWEPPES. What was allege to be an imitation of it, was. a label of <ORG> Mineral water. In that case it was conceded is apparent from what is stated at page 211, that copyright subsisted in the <ORG> labels, and that the plaintiff had the copyright in those labels. There is no such concession in the instant case. In any event, a case based on the concession is of no binding authority and of no help to the plaintiff. In <ORG> case there was no consideration of the question whether a mechanically reproduced label is by itself, a good subject matter of copyright or not. It appears to have been assumed in that case, that there was in existence an original copyrighted design executed by an artist; where's, in this case, we have to proceed on the basis that the printed carton placed before the <ORG> is the only "original". .

(33) It is significant that the printed cartons en their face, contain no notice of existence of any copyright therein. Further even on the pencils there is no indication of claim to copyright whether with respect to the pattern on its 'skin' or otherwise.

(34) The counsel next relied on 1970 R.P.C.259; which related to the shape of the bottle of <ORG>'s Dimple Scotch Whisky Bottle. This case can be of no help to the plaintiff for the reason that the Dimple Scotch <ORG> Whisky bottle is a three dimensional object having, peculiar features of shape and configuration. and may have had protection under the Design Laws. The reason for grant of injunction therein was, because the bottle, used by the plaintiff was of a shape which was copied by the defendants, and the defendant's bottle led to confusion between the defendants' bottles and the plaintiffs' bottlts.

(35) Counsel for the plaintiff also referred to 1977 R.P.C. 255(8), Karo Step Trade Mark. That case was a "rectification" proceeding for the purposes of removal of a trade mark from the register. The trade mark, which was sought to be removed, was a four pointed star device. In that case. the four pointed star device was designed by a commercial artist who had assigned the copyright to <ORG>. The question was, whether it was an artistic work within Section 3 of the English Copyright Act. The Court held : "It (the mark) is a drawing, and Section 3(i)(a) expressly classifies drawings on proper subject matter of artistic copyright, irrespective of artistic quality. No doubt a drawing may be so simple 'that it cannot be said to be "a work". For example, a. straight line or a circle for the word "work" itself carries with it t^e idea of the exercise of some degree of skill and labor, but I am unable to accept the submission of counsel for Mrs. <NAME> that the artistic part of this device is go simple a nature that no copyright can reside in it."

(36) If is clear from , part of the judgment reproduced above, that the <ORG> had before it the original drawing, and the deed assigning copyright in the Drawing, and the <ORG> had come to the conclusion that some degree of skill and labor required in producing the design/drawing of the four pointed star composed in a circle within the circle. It is clear from the report that the two words 'Karo Step' were not even suggested to have become subject matter of a literary copyright. This case reiterates that the skill and labor expanded upon a work is the sine qua non for existence of copyright in any work. 'This test has. been applied by <ORG>s for long. See :- 1925, <ORG> 75 (9), and 1960(1) <ORG> 53 (.10).

(37) This case, therefore, does not help the-counsel for the plaintiff as in the instant: case, what is before the <ORG> is a mechanically reproduced article and not the original article on which skill and labor of an artist, has been 'expended. As slated above, the carton relied upon by the counsel doss not say upon its face, by. any of tiles recognised symbol/words., that the subject matter of the carton is copyrighted and that copyright thereof vest in the plaintiff.

(38) The counsel also referred to <ORG> on Copyright, 1980 84 and Modern Law of Copyright by Laddie & Ors; .107. Both of these are commentaries and the comment is based upon the judgments which have been already referred to above, which judgments are. found not to, give any support to the contention which has been raised in this... case that a mechanically printed carton is good subject matter of copyright. In fact, none of the above cases -has even consider. the matter from this angle.

(39) The counsel for the plaintiff referred to 1978 Delhi 250 at 252(11) and particularly the passage at page 252, in support of the proposition that a person who is the first user of the mark is entitled to a right therein. The Mark in question there was 'Raja Rani' and the prior use thereof was held to confer a right to restrain others from using it. In the instant case, the question is not of the first user or the prior user, but whether a right covered by the' law of copyright subsists in the mechanically printed carton. For this proposition 1978 Delhi 250, 252 (Supra) does not have anything to say. It does not give any support to the paintiff. It cannot ev.en be suggested in the instant. case, that the words "CAMLIN FLORA" which are found in the carton are used by the defendants. The words used by the defendants are inter-alia 'NATIONAL ELORA'. There is dear distinction between 'CAMLIN FLORA' and 'NATIONAL ELORA'. The. two sets of word combinations only have to he written to make it evident. It cannot possibly be said that 'CAMLIN FLORA' is same as, or-similar to 'NATIONAL ELORA'.

(40) Another case cited by the counsel is 19.60 R.P.C.page 150 (12). In this case, what was in question was the artistic design impressed upon the plastic container of blankets. In that. case the Court assumed that the plastic container bearing a representation .of the head and shoulders of a woman was an artistic work within the meaning of Copyright Act and it was so conceded (page 151 line 42). That case, based upon a concession, does not help the plaintiff, as there is no such concession. in the instant case, (41) The counsel cited 1977 <ORG> page 41 (13) for the preposition that the certification from the copyright register bearing seal of <ORG> a prima facie evidence of existence of copyright. There is no force in this contention as the judgment does not say so. What the judgment says is that the certificates under the Copyright Act only prima facie, show that the particulars mentioned in the certificate are entered, in the copyright register I am of the view that the mere fact that something is entered in the Copyright Register, does not as, a matter of law establish that what. is registered is in fact and in law copyrightable subject matter. This is so because, the sine qua non to the existence of copyright, is the expenditure of skill and labor on any work which originated from its author and unless the original work, on which skill and labor has been expended by its author is produced in Court to prima facie show that the work has originated from an author, it cannot be said that there is copyright in any work. The existence of artistic merit in any original artistic work is not a matter which determines the existence of copyright therein. The copyrightable matter is that which has originated from the author who has expended skill and labor upon them. In 1977 <ORG> 41 (Supra) there was no finding of fact, that the matter ton the containers was a copyrightable artistic work and the case seems to have proceeded upon the copyright certificate only, arid if that judgment can be said to say that what is printed on tins by a printing process, (Printing process essentially not involving any skill or labor of a natural person) then I respectfully disagree from-that judgment. lt is too well settled in copyright law that without expenditure of skin and labor on a work which has originated from the author, no copyright can come into existence. [1924 <ORG> and 1960(1) Madras Law Journal 53)(Supra). It is also to be kept in view that the judgment in. 1977 <ORG> 41 (Supra) is on an interim application and not a final judgment after trial.

(42) The counsel has referred to 1975 Delhi 130 (14). That case related to Trade and Merchandise Marks Act and the questions which were considered in that case related to assignment of copyright and vesting of copyright and the duration of copyrights. The question decided in that case was not whether a mechanically reproduced printed paper carton can be said to be copyrightable. This case also does not help the petitioner. I am of the view that a mechanically printed card board carton is not copyrightable, there is no skill and labor involved in its production, and. no copyright subsists in it. No suit can be maintained on the basis of any alleged copyright in a printed card board carton.

(43) It was next contended by the counsel for the plaintiff that the words 'FLORA' and 'ELORA' to be found on the respective cartons of the plaintiff and the defendants should be seen ant on an examination it would be seen that the attempt has been made to write the word 'ELORA' in the same calligraphics style. That the alphabet 'E' in the word 'ELORA', and the alphabet 'F' in the word 'FLORA' have been. in the same calligraphic style. It is also asserted that the alphabet 'R' found in both Flora & EL.ORA, are in the same calligraphic style.

(44) There is no doubt that the alphabet 'F' and alphabet 'E' in the plaintiff's Flora as appearing on the carton of the plaintiff, has been written in the same calligraphic style as the alphabet 'E' and 'R' in 'ELORA' on the defendants' carton. With respect to this contention, I am of the view that the maxim : Demonisms Non Curat Lex applies with full force.

(45) This is too minute a comparison. The alphabets F & R in the plaintiff's carton and the alphabet 'E' and 'R' in the defendants' carton are a very small part of the entire carton and in my view, this similarity in the two alphabets is not sufficient to establish an attempt to pass off of the defendants' carton as the plaintiffs carton, for the reason that .the alphabets occupied only a small area of the carton. Another reason why I am of the view that there is no passing off of the defendants. cartons, is that on the defendants carton very prominently printed is a famous sculpture of India "Woman writing a letter". The suggestion . given by the defendants' carton is that this sculpture is from the, Elora Caves. This suggestion may be a misleading one. The sculpture exists at Khujuraho. But the word 'ELORA' Coupled with the figure of 'woman writing a letter', indicates that the defendants' carton has no relationship to flowers, but to a place famous for its painting and sculpture the Elora caves.

(46) The word Flora is used in Botany to mean flowers in general, as a class. The counsel for the plaintiff stated that the phonetics of Elora and Flora are similar and, therefore, relying upon 1970 <ORG> 1649; (15) (Rustom-Ruston) and 1970 Supreme- Court 146 at 148; (16) (Ambal-Andal). it should be held that there is an attempt to pass off the goods.

(47) In my view, flowers do not necessarily represent something which is relatable to art or artists whereas Elora brings clearly to the mind of all Indians something connected with art or artists. Pencils are what are used by artists, and in this case mere phonetics similarity are not so obvious so as to pass nil one for the other. The defendants seek to identify their pencils with artists, and the plaintiff with botanists.

(48) It is also asserted by counsel that some colour combinations are used on the cartons. I am of the view that the two cartons have different colour combinations, and there are differences in the colour. There are differences in the composition on the printed matter and, therefore, carton of the defendant cannot, on the basis of similarity of colour combination, be said to an attempt to pass off the defendants' carton as cartons of the plaintiff. The counsel for the plaintiff relied upon 1972 Delhi. 41 <CITATION> , for the proposition that normally people have imperfects and fading memory. No doubt it is so but this principle does not apply in this case as the difference in the cartons sufficiently distinguish the two cartons.

(49) Mr. <NAME> did not make any submission at all regarding the copy-right ability of printed cartons as defendants themselves claim copyright in 'such mechanically printed cartons.

(50) His only submission related to passing off only. .Mr. <NAME> contended that there is no similarli.y at all. whether phonetic or visual between the two words Camlin Flora the registered mark of the plaintiff, and National Elora which is used on the cartons of the defendants. In view of the fact that the device of a 'woman writing a letter is to be found on the carton of the defendants, I agree with Mr. <NAME> that on the visual examination of whole of the cartons of the plaintiff, and whole of the carton of the defendant, there is no like hood of confusion.

(51) Mr. <NAME> also asserts that the beginning of the words, which are alleged to cause confusion are important, and that the words have to be viewed as a whole and not merely some of its alphabets. Only the alphabets which go to make up the words are not to be taken into account .in isolation and he refers J970 Supreme Court 2062: (17) <CITATION> case clearly holds that it is the entire word which has' to be seen; that ail the alphabets have to be pronounced when phonetics are to be taken into account, and no alphabets used in a word can be slurred over.

(52) The other judgments referred to by Mr. <NAME> are 1974, Vol. Ii Delhi 151, (18) Mis. <CITATION> , and 1969 (19) Punjab 290, <ORG> v, <ORG>, <ORG> and Another. In the formal case. it was held that the words arc label of "Panghat Ghee" was distinct and different from the word and label "Gopi". In the latter case, the words in question were Elephant and .'Jagjit Hathi', which were found to distinct.

(53) Mr. <NAME> in reply said that: the misspelling of the word Ellora as Ellora by the defendant and copying of the call-graphical style of writing the alphabet 'E' and alphabet 'R' show an intention to deceive and to passing off.

(54) I am of the view that there is no precedent binding on me to hold that a mechanically reproduced printed carton is capable of being subject matter of copyright. In the instant case, what has been produced in <ORG> is only a mechanically reproduced printed card board carton and I find that copyright does Hot subsist therein. In my view, copyright does not subsist therein for the reason that it is impossible to determine who is the "author" of the mechanically reproduced printed carton. Copy right is conferred only upon "authors" or those who are natural person from whom the wort; leas originated or the authors may be legal persons to whom copyright has been assigned in accordance with law. by the authors from whom the work had originated (55) In the circumstances, I hold that plaintiff can not claim any copyright in any carton that has been mechanically reproduced by a printing process as the work cannot said to have 'originated from the author. I am of the view that a machine cannot be "author" of an artistic work, nor can it have copyright therein.

(56) As regards the contention of the plaintiff that defendants have attempted to pass of their cartons as cartons of the plaintiff, I hold that taking into 'account the entirety of the carton, its colour scheme, the subject matter printed thereon, and keeping view the similarities in the caligraphic style of the alphabets, E, F and R, and the apparent differences, it can not be said that there is any likelihood of confusion between the cartons of the defendants and the cartons of the plaintiff as the differences, mentioned earlier, outweight the similarities.

(57) .IN view of what is stated herein above, and in view of my finding that there is non-copyrightable subject matter in mechanically produced printed cartons the only right being claimed in the suit being on the basis that the mechanically reproduced printed carton has copyrightable subject matter in it, the instant suit for infringement of copyright is not maintainable.

(58) As regards the infringement of the plaintiff's trade mark Camlin Flora, I am of the view that the words National Elora in no view of the matter can be said to infringe the trade mark Camlin Flora, nor can the words National Elora be passed of as the words Camlin FLORA.

(59) In my view the suit for infringement of alleged copyright or the alleged infringement of the trade mark of for the alleged passing of can not be maintained. I am further of the view that the use of the word National Elora on the cartons of the defendants do not give any cause of action to the plaintiffs' as they do not infringe the alleged trade mark. <NAME>. In view of my findings, not only the plajnliff's are not entitled to the injunction which they have prayed for but they are not entitled to maintain the suit as brought and framed. The suit as filed, and the documents field Along with the plaint do not dispose a cause of action against the defendants and the plaint is liable to be rejected. The injunction prayed for is refused and the plaint is rejected under provisions of order 7 Rule 11 of the Code of Civil Procedure, as the same discloses no cause of action. I.A. 2209/85 and Suit No. 662/85 are disposed off.


PETITIONER: <ORG>, SOUTHERN NAVAL AREA, <NAME> Vs. RESPONDENT: <NAME> DATE OF JUDGMENT10/03/1981 BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, <NAME>, <NAME>, AMARENDRA NATH (J) CITATION: 1981 AIR 965 1981 SCR (3) 165 1981 SCC (2) 636 1981 SCALE (1)510 ACT: Service matter- Article 16- Service of a temporary government servant terminated by a termination order simpliciter- Article 16 , if attracted. HEADNOTE: The respondent, in the first instance, was appointed as a casual labourer for a month but was continued against an existing vacancy. He was later appointed as a labourer in a regular cadre in an existing vacancy. Sometime later he was promoted and appointed as Ammunition Repair Labourer, Grade II. Three years thereafter his services were terminated. In a petition under Article 226 of the Constitution the respondent impugned the order of termination of his services on the ground that he was appointed permanently to the post of Ammunition Repair Labourer Grade II and that the termination of his services, when juniors were retained in service, was discriminatory and was in contravention of Article 16 of the Constitution. The appellant contended before <ORG> that the term "regular cadre" did not imply as in other instances in the employment of government a substantive post, but that the post in the regular cadre is a purely temporary one. A single Judge of <ORG> rejected the respondent's claim that he was appointed permanently to the post but held that since persons junior to him had been retained in service, termination of his services without assigning any reason was discriminatory and, therefore, the order was bad in law. Agreeing with the view of the single Judge <ORG> of <ORG> dismissed the appellant's appeal. Allowing the appeal ^ HELD: A perusal of the file relating to the termination of the services of the respondent shows that the decision to terminate his services had been taken at the highest level on the ground of his unsuitability in relation to the post held by him and that it was not by way of any punishment and no stigma was attached to the respondent by reason of the termination of his services. [172 G-H] The well settled position in law in this regard is that (i) if the services of a temporary government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his un- 166 suitability for the job and/or for his work being unsatisfactory or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article 16; (ii) where the services of a temporary government servant or a probationer government servant are terminated by an order which does not ex-facie disclose any stigma or penal consequences against the government servant and is merely a termination order simpliciter there is no case ordinarily for assuming that it is anything but what it purports to be; (iii) before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one government servant and another similarly placed, which cannot be reasonably explained except on an assumption or demonstration of "malice in law" or "malice in fact". Acting on legally extraneous or obviously misconceived grounds of action would be a case of "malice in law"; (iv) it is open to the employer to terminate the services of a temporary employee on probation at any time before he was confirmed if the employer was satisfied that he was not suitable for being retained in service. [E 169 D; 170 C; 171 C; 172 B] In the instant case the respondent was a temporary government servant. No stigma is attached to the termination of his services. His services had been terminated for unsuitability in relation to the post held by him. [171 F-G] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1154 of 1970.

Appeal by special leave from the Judgment and Order dated 18.7.1969 of <ORG> in Writ Appeal No. 620/69.

<NAME>, <NAME> and <NAME> for the Appellant.

<NAME> and <NAME> for the Respondent. The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is directed against the judgment of <ORG> of <ORG> in Writ Appeal No. 620 of 1969, which had been filed by the appellant against the judgment of the learned Single Judge of that High Court, allowing O. P. No. 672 of 1969. O.P. No. 672 of 1969 was filed under Article 226 of the Constitution challenging the termination of the service of the respondent by the appellant by the order dated 17-1-67. That order is to the effect that in accordance with the terms and conditions of his service the respondent stated to be a temporary Ammunition Repair Labourer Grade II, Naval Armaments Depot, Alwaye, is informed that his service is thereby terminated with effect from the date of service of that order on him. That order further states that respondent will be paid a sum equivalent to the amount of his pay plus allowances for the period of notice, due to him, that is, for one month in accordance with the provisions of the Navy Instruction 22/53, as amended and that the payment of allowances will, however be subject to conditions under which such allowances are admissible.

The respondent having been recommended by <ORG>, was appointed by the appellant by Ex. P-1 as labourer on casual basis in lieu of Sailor in the Installation Team (I.N.S. Venduruthy) on pay of Rs. 70/- p.m. plus allowances as admissible from time to time for the period of one month in the first instance with effect from the forenoon of 18.12.61. The appellant continued the respondent's employment as labourer in lieu of Sailor in B.R.O. (Installation) Department, Cochin against some existing vacancy with effect from the forenoon of 18.1.62 by Ex. P-2. When he was casual labourer in <ORG> he was transferred by the appellant to <ORG>, Alwaye and appointed as labourer in the regular cadre in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from 15.11.62. Subsequently, when the respondent was working as a labourer in <ORG> at Alwaye the appellant promoted him and appointed him as A.R.L. Grade II in the Naval Armaments Depot, Alwaye in the scale mentioned therein plus allowances as admissible from time to time in an existing vacancy with effect from the forenoon of 2.3.64. Thereafter, his services were terminated by Order dated 17-1-67 (Ex. P-8) as mentioned above.

In the the Writ Petition the respondent attacked the order-Ex. P-8 on two grounds, namely, (1) that he was appointed permanently to the post of A.R.L. Grade II by the Order (Ex. P-4) and (2) that persons junior to the respondent have been retained in service and, therefore, the termination of the services of the respondent without any reason whatsoever, is discriminatory and contravenes Article 16 of the Constitution. In the counter-affidavit filed in the Writ Petition the appellant contended that the phraseology "regular cadre" does not imply as it may in some other instances in the employment of government, a substantive post, that the post in the "regular cadre" is also a purely temporary one and that the post of Ammunition Repair Labourer Grade II to which the respondent was promoted and appointed, was also on a temporary basis. The appellant denied that there was any discrimination in the termination of the services of the respondent. The learned Single Judge repelled the contention that the respondent had been permanently appointed to the post of ARL Grade II by the Order Ex. P-4 on the ground that there is nothing in the order to show that the respondent had been appointed permanently to the post. Regarding the second ground urged by the respondent the learned Single Judge held, relying upon this <ORG>'s decision in <CITATION> (1) and two other decisions of the Mysore and Andhra Pradesh High <ORG> in <NAME> v. State(2) and <NAME> v. <ORG>) respectively that Article 16 of the Constitution applies even to temporary government servants. The learned Judge observed that there is no denial of the fact that persons junior to the respondent have been retained in service and that there is nothing in the order, Ex. P-8 or in the counter affidavit filed by the respondent in the Writ Appeal to show that the respondent was guilty of any misconduct or was otherwise unfit to hold the post. The learned Judge further observed that in paragraph 8 of the counter affidavit it has only been stated that the fact other persons who are junior to the respondent are retained in service, would not confer any right on the respondent to continue in service. In this view the learned Judge held that the termination of the respondent's services under Ex. P-8 without assigning any reason was discriminatory and he accordingly allowed the Writ Petition without costs. In the Writ Appeal filed under s. 5 of the Kerala High <ORG> Act <ORG> followed the aforesaid decision of this <ORG> in <CITATION> (supra) and agreed with the learned Single Judge that the appellant's action in terminating respondent's services under Ex. P-8 is violative of Article 16 of the Constitution. The learned Judges observed in their judgment that no reason at all was either alleged or proved as to why appellant chose to terminate the respondent's services under rule 5 of the Central Services (Temporary Services) Rules 1965 such as that it was administratively convenient to do so or that the respondent's work or conduct was unsatisfactory or that it was a case of retrenchment and the respondent was chosen as the junior-most person. The learned Judges accordingly dismissed the Writ Appeal.

The principle that even temporary government servants are entitled to the protection of Article 311(2) in the same manner as permanent government servants if the government takes action against them by meting out one of the three punishments of dismissal, removal or reduction in rank, is well settled. This court has held in <CITATION> (1) that temporary servants are also entitled to the protection of Article 311(2) in the same manner as permanent government servants if the government takes action against them by meting out one of the three above punishments following the decision in <CITATION> (2) and that this protection is only available where the discharge, removal or reduction in rank is sought to be infected by way of punishment and not otherwise. The same view has been reiterated by this Court in Manager, Govt. Branch Press and Anr. v. D.B. Beliappa,(3) where it has been observed thus:

"The principle that can be deduced from the above analysis is that if the services of a temporary Government servant are terminated in accordance with the conditions of his service on the ground of unsatisfactory conduct or his unsuitability for the job and/or for his work being unsatisfactory, or for a like reason which marks him off in a class apart from other temporary servants who have been retained in service, there is no question of the applicability of Article

16. Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the <ORG> the reason or motives which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(12 ), Proviso (c), the authority cannot withhold such information from the <ORG> o the lame excuse, that impugned order is purely administrative and not judicial, having been passed in exercise of its adminis-

trative discretion under the rules governing the conditions of the service."

In the latest decision in <CITATION> . a similar observation has been made by <NAME>, J. at page 567:

"The law, it seems to me, is that where the services of a temporary <ORG> servant or a probationer <ORG> servant are terminated by an order which does not ex facie disclose any stigma or penal consequences against the <ORG> servant and is merely a termination order simpliciter, there is no case ordinarily for assuming that it is anything but what it purports to be. Where, however, the order discloses on the face of it that a stigma is cast on the <ORG> servant or that it visits him with penal consequences, then plainly the case is one of punishment. There may still be another kind of case where although the termination of service is intended by way of punishment, the order is framed as a termination simpliciter. In such a case, if the <ORG> servant is able to establish by material on the record that the order is in fact passed by way of punishment, the innocence of the language in which the order is framed will not protect it if the procedural safeguards contemplated by Article 311(12) of the Constitution have not been satisfied. In a given case, the <ORG> servant may succeed in making out prima facie case that the order was by way of punishment but an attempt to rebut the case by the authorities may necessitate sending for the official records for the purpose of determining the truth. It is in such a case generally that the official records may be called for by the <ORG>. It is not open to the <ORG> to send for the official records on a mere allegation by the <ORG> servant that the order is by way of punishment. For unless there is material on the record before the <ORG> in support of that allegation, an attempt by the <ORG> to find out from the record whether the termination of service is based on the unsuitability of the <ORG> servant in relation to the post held by him or is in reality an order by way of punishment will in effect be an unwarranted attempt to delve into the official records for the purpose of determining the nature of the order on the basis of a mere allegation of the <ORG> servant. On a sufficient case being made out on the merits before the <ORG> by the <ORG> servant it is open to the <ORG> to resort to scrutiny of the official records for the purpose verifying the truth". This <ORG> has observed in Regional Manager and Anr. v.

<NAME> thus:

"We do not think that <NAME> case, in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution. We would, however, like to emphasize that, before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one <ORG> servant and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of "malice in law" or "malice in fact". As we have explained, acting on a legally extraneous or obviously misconceived ground of action would be a case of "malice in law". Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, are unaffected by <NAME> case (supra). They are not vitiated merely because some other <ORG> servants juniors in the substantive rank, have not been reverted."

After examining the record in <NAME> case (supra), the learned Judges have observed:

"What weighed with this Court was not only that there was a sufficient "element of punishment" in reverting <NAME> for a supposed wrong done, from which the order of reversion could not be divorced, so that Article 311 (2) had to be complied with, but, there was also enough of an impropriety and unreasonableness in the action taken against <NAME>, solely for a very stale reason, which had become logically quite disconnected to make out a case of "malice in law" even if it was not a case of "malice in fact"

The matter is also covered by a recent decision of this Court in <CITATION> .

<NAME> where one of us (<NAME>, J.) speaking for the <ORG> observed as follows:

"As the respondent was a temporary employee on probation, it was open to the employer to terminate his services at any time before he was confirmed, if the employer was satisfied that he was not suitable for being retained in service."

"The learned counsel for the respondent submitted that the remarks made in the assessment roll went to show that the intention of the appointing authority was to proceed against the respondent by way of punishment. We are, however, unable to agree with this submission. It is obvious that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained. The remarks, in the assessment roll, merely indicate the nature of the performance put in by the officer for the limited purpose of determining whether or not his probation should be extended. These remarks were not intended to cast any stigma." "In these circumstances, therefore, it is obvious that as the respondent was merely a probationer, the appointing authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job. It is well settled by a long course of decisions of this Court that in the case of a probationer or a temporary employee, who has no right to the post, such a termination of his service is valid and does not attract the provisions of Article 311 of the Constitution."

We agree with the learned Judges who constituted <ORG> of <ORG> that the respondent was only a temporary government servant and that even as a temporary government servant he is entitled to the protection of Art. 311 (2) of the Constitution where termination involves a stigma or amounts to punishment. We looked into the file relating to the respondent ending with order of termination of his service (Ex-P-8). We are satisfied that the decision to terminate the services of the respondent had been taken at the highest level on the ground of unsuitability of the respondent in relation to the post held by him and it is not by way of any punishment and no stigma is attached to the respondent by reason of the termination of his service. In these circumstances we allow this appeal and set aside the judgment of <ORG> and confirm the appellant's order, Ex. P.B. terminating respondent's services. The appellant shall bear his own costs and pay respondent's costs.

P.B.R. Appeal allowed.