Case BriefsSupreme Court

Supreme Court: In a detailed judgment stressing on the importance of the work done by the Anganwadi workers/helpers at the grassroot level, the bench of Ajay Rastogi and Abhay S. Oka, JJ has held that Anganwadi workers/helpers are entitled to gratuity under the Payment of Gratuity Act, 1972.

Writing separate but concurrent opinions, both the judges agreed that the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre¬school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

The Court observed that it is high time that the Central Government and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society.

Justice Oka wrote that the definition of ‘wages’ is very wide. It means all emoluments which are earned by an employee on duty. Thus, the honorarium paid to Anganwadi Workers/Helpers will also be covered by the definition of wages.  As Anganwadi Workers/Helpers are employed by the State Government for wages in the establishments to which the 1972 Act applies, the AWWs and AWHs are employees within the meaning of the 1972 Act.

He also held that it was impossible to accept the contention that the job assigned to Anganwadi Workers/Helpers is a part-time job. It is full-time employment.

He added,

“the Government of India by a notification dated 3rd April 1997 has notified educational institutions as establishments under clause (c) of sub-section (3) of Section 1 of the 1972 Act. In the Anganwadi centres, the activity of running a preschool for the children in the age group of 3 to 6 years is being conducted. It is purely an educational activity. The job of teaching is done by Anganwadi Workers/Helpers. The State Government is running preschools in Anganwadi centres in accordance with Section 11 of the RTE Act. For the reasons recorded above, I have no manner of doubt that the Payment of Gratuity Act, 1972 will apply to Anganwadi centres and in turn to Anganwadi Workers/Helpers.”

Justice Ajay Rastogi observed,

“If we look towards the problems plaguing the Anganwadi workers/helpers, the first and foremost, they are not holders of civil posts due to which they are deprived of a regular salary and other benefits that are available to employees of the State. Instead of a salary, they get only a so called paltry ‘honorarium’ (much lower 24 than the minimum wages) on the specious ground that they are part-time voluntary workers, working only for about 4 hours a day.”

He, hence, observed that the time has come when the Central Government/State Governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure quality in the delivery of services and community participation and calling upon Anganwadi workers/helpers to perform multiple tasks ranging from delivery of vital services to the effective convergence of various sectoral services, the existing working conditions of Anganwadi workers/helpers coupled with lack of job security which albeit results in lack of motivation to serve in disadvantaged areas with limited sensitivity towards the delivery of services to such underprivileged groups, still being the backbone of the scheme, time has come to find out modalities in providing better service conditions of the voiceless commensurate to the nature of job discharged by them.

[MANIBEN MAGANBHAI BHARIYA v. DISTRICT DEVELOPMENT OFFICER DAHOD, 2022 SCC OnLine SC 507, decided on 25.04.2022]


Judgment by: Justice Ajay Rastogi and Justice Abhay S. Oka


Counsels

For appellants: Senior Advocate Sanjay Parikh and P.V. Surendranath

For State of Gujarat: Advocate Aastha Mehta

Op EdsOP. ED.

Background

As things stand, embroiled in a tug of war are two States—Kerala and Karnataka over the right to use an acronym/abbreviation “KSRTC” trade mark, its emblem and nickname “Aanavandi”, which means an elephant vehicle, for their respective road transportation corporations providing services to the general public for decades now. The Kerala State Road Transport Corporation started using the abbreviation “KSRTC” when they started the services in 1965, while Karnataka State Road Transport Corporation commenced services in 1974 and started using the abbreviation since then. Apparently, they have been using the same area for parking purposes, operations and management and booking counters.

The case got reignited recently when a press release[1] was issued by Kerala that the Trade Marks Registry had given a final verdict to use the abbreviation “KSRTC” in its favour. However, subsequently, Karnataka SRTC issued a statement, saying the reports are factually incorrect as we have not received any such notice or order from the Central Trade Mark Registry as claimed until today”. To my mind, there is no such order granting any exclusive rights over the trade mark “KSRTC” to one State over the other as on date.

The trade mark public search report by the Controller General of Patents, Designs and Trade Marks under the Ministry of Commerce and Industry, which clearly mentions that Kerala and Karnataka have the rights to use “KSRTC”. Furthermore, the rectifications filed by Kerala SRTC against Karnataka SRTC’s registrations are pending before the IPAB (Intellectual Property Appellate Board)(now the Madras High Court, after abolition of the IPAB) without determination. Consequently, till the determination of the same, there is no bar against the use of the acronym by either of the States.[2]

Law of the land 

(i) Abbreviations of descriptive words/trade name

14. McCarthy on Trademarks and Unfair Competition (3rd Edn., Vol. 2) states that:

The names of a product or service itself what it is ― is the very antithesis of a mark. In short, a generic name of a product can never function as a trade mark to indicate origin. The terms “generic” and “trade mark” are mutually exclusive…. The concept of “generic name” and “trade name” are mutually exclusive. Thus, if in fact a given term is “generic”, it can never function as a mark to identify and distinguish the products of only one seller (Para 12.01).

An abbreviation of a generic name which still conveys to the buyer the original generic connotation of the abbreviated name, is still, generic”.

“Acronyms of generic names are often used interchangeably with the full generic name and recognised as equivalent ….”

“If the abbreviation is not recognisable as that original generic term, then the abbreviation is like a fanciful mark and protectable. [Para 12.12(1)]”

“As with misspelling of descriptive terms, a misspelling of a generic name which does not change the generic significance to the buyer, is still ‘generic’. [Para 12.12(2)]”[3]

(ii) Prior use

As both entities have been using the abbreviation KSRTC for a very long time and both have valid and subsisting registrations over the said mark, one of the most important facts of such cases would be priority of use. It has been reported that Kerala trumps Karnataka in this respect, as the use of the abbreviation by Kerala dates back to 1965 whereas Karnataka can establish its use from the mid-1970s only.

In a recent case, namely, Peps Industries (P) Ltd. v. Kurlon Ltd.[4], the Delhi High Court states that:

  1.  … (i) Rights of registered owner of the trade mark though exclusive, are subject to various provisions and thus not absolute.

(ii) The rights of a person alleging passing off the goods of the other party as that of its own, emanate from the common law and not from the provisions of the Trade Marks Act and thus, independent from the rights conferred by the Act.

(iii) The right of the registered owner of the trade mark is not higher in order to right of the person using an identical trade mark or resembling thereto in relation to the similar goods and services if the other party has been continuously using the said trade mark prior to the user of the trade mark by the registered owner. The user by other party has to be continuous, distinct from the user which is separate, isolated or disjointed and requires the commercially continuous use of mark in relation to the same goods or services. A defendant seeking to set up a defence of prior use under Section 34 of the Trade Marks Act has also to prove the volume of sales. Mere issuance of an advertisement would not constitute user of the mark.

Kerala mainly relied on the “first user” principle elaborated in Section 34[5] of the Trade Marks Act. According to the principle, the proprietor of a registered trade mark cannot prevent the use of a similar or identical mark by another party which had commenced the use of the same prior registration.

(iii) Honest concurrent use

Given the emotive regard both States have towards the abbreviation, a reasonable compromise could perhaps be found in Section 12 of the Trade Marks Act, which provides for the Registrar to allow for the coexistence of both trade marks for honest and concurrent use. It has been well explained as below:

  1. Registration in the case of honest concurrent use, etc. In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trade mark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose.

In London Rubber Co. Ltd. v. Durex Products Incorporated[6], it was stated that:

  1. … (2) In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do he may permit the registration by more than one proprietor of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as the Registrar may think fit to impose.

(3) Where separate implications are made by different persons to be registered as proprietors respectively of trade marks which are identical or nearly resemble each other, in respect of the same goods or description of goods, the Registrar may refuse to register any of them until their rights have been determined by a competent court.

In Kores (India) Ltd. v. Khoday Eshwarsa & Son[7], the Court laid down in para 11 the following tests for determining the honest concurrent user:

(1) The honesty of the concurrent use.

(2) The quantum of concurrent use shown by the petitioners having regard to the duration, area and volume of trade and to goods concerned.

(3) The degree of confusion likely to follow from the resemblance of the applicant’s mark and the opponent’s marks.

(4) Whether any instance of confusion have in fact been proved.

(5) The relative inconvenience which would be caused to the parties and the amount of inconvenience which would result to the public if the applicant’s mark is registered.

Conclusion

As of today, both States forge ahead using the abbreviation with their respective logos. In the current state of affairs, Karnataka and Kerala could not be more in antipodal directions. While the former is a saffron State, the latter has voted in the communist red. However, despite some ideological differences, the two neighbours share a right neighbourly relationship and tend to resolve their dispute through amicable talks. Therefore, battles over intellectual property rights that bear great historical and cultural significance have the potential to be resolved through the principle of coexistence. This will enable the institutional heirlooms of the past to thrive and prosper for the generations to come.


Intellectual Property Lawyer, Member, FICCI IP Forum; Editor, The Trade Mark Reporter, International Trademark Association (INTA), LLM in Intellectual Property Law, Queen Mary University of London (QMUL). Author can be reached at yash0843@gmail.com.

[1] <https://indianexpress.com/article/explained/how-kerala-won-battle-for-ksrtc-trademark-7344760/>.                  

[2]<https://www.newindianexpress.com/states/kerala/2021/jun/06/ksrtc-not-exclusive-to-kerala-says-union-ministry-report-2312357.html>.      

[3] SBL Ltd. v. Himalaya Drug Co., 1997 SCC OnLine Del 571, para 14.        

[4] 2020 SCC OnLine Del 1882.          

[5] Section 34, Trade Marks Act. <http://www.scconline.com/DocumentLink/X9bqcPzT>.

[6] (1964) 2 SCR 211.

[7] 1984 SCC OnLine Bom 65.      

Case BriefsSupreme Court

Supreme Court: The three-judge bench comprising Ashok Bhushan*, R. Subhash Reddy and M.R. Shah, JJ., addressed the instant petition questioning the closure of the Anganwadi Centres across the country. The Bench said, “Government has a constitutional obligation to preserve human life.”

Background

 Through Anganwadi Centres, supplementary nutrition to pregnant women, lactating mothers, adolescent girls and children up to the age of 6 years were being provided which fulfilled the State objective of holistic development of children under 6 years and to provide food and nutrition to the beneficiaries as mandated by Article 47 of the Constitution. After spread of Covid-19, Anganwadi Centres were closed throughout the country in March, 2020. Distribution of special nutrition and other benefits, being essential services were permitted to be conducted by Anganwadi staff by resorting to Take Home Ration. The Supplementary Nutrition Programme supplied under ICDS Scheme was of two types for different beneficiaries’ i.e.

(a)Take Home Ration for pregnant women & lactating mothers and children in the age group of 6 months to 3years; and

(b) Morning Snacks and Hot Cooked Meal for children in the age group of 3-6 years.

Lockdown was lifted by the competent authority in phased manner and gradually specified activities were permitted to be opened but even during the post-lockdown period; beneficiaries, children pregnant women and lactating mothers continued to suffer due to non-opening of Anganwadi in various States. Counsel for the petitioner, Colin Gonsalves contended that pandemic has caused severe strain on the employment and means of livelihood of a large section of society especially marginal sections, therefore, they require immediate extension of all benefits as envisaged in the Scheme. National Human Rights Commission had also made recommendations on 28-09-2020 and 29-09-2020 after impact assessment, issued advisory to reopen Anganwadi Centres immediately. The petitioner further submitted that due to non-providing of hot cooked meals to children up to the age of six years and children who were affected of malnutrition they were suffering which needed immediate attention and remedial action.

Observations

 Considering above mentioned facts, the Bench expressed, “Inadequate supply of nutritious food to the citizens, more particularly to children and women would affect their health. Therefore, the same shall be in violation of their fundamental right to health/right to live with dignity guaranteed under Article 21 of the Constitution.”

 Government had launched an Integrated Child Development Services Scheme in the year 1975; which was designed as an early childhood development programme aimed to address health, nutrition and development needs of young children, pregnant and nursing mothers. Later, another Act, National Food Security Act, 2013 (“the Act, 2013”) was enacted to provide for food and nutritional security by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith. The Act, 2013 by Section 4 creates a statutory right of every pregnant woman and lactating mother of free meals during pregnancy and six months after the child birth. Section 5 provides for free of charge nutritional support to children, in case of children in the age group of six months to six years, age appropriate meal through the local Anganwadi so as to meet the nutritional standards. Anganwadi Centres had been given statutory recognition under the Act, 2013 and Section 7 had created an obligation on the State Governments to implement schemes covering entitlements.

On observing that ready to eat nutritional traditional sweet was provided by some States in lieu of hot cooked meals to 3 to 6 years’ children, the Court stated that the State ought to include certain cereals in Take Home Ration instead of providing only ready to eat substitutes. The nutritional standard as provided in Schedule II of Act, 2013 was mandatory to be complied with by the States.

The Court said, “Children are the next generation and therefore unless and until the children and the women have the nutritious food; it will affect the next generation and ultimately the country as a whole.” Article 47 of the Constitution had also provided that one of the primary duties of the State is to raise the level of nutrition and the standard of living of the people.

Noticing that some States were under the impression that the order issued by the Ministry of Home Affairs dated 25-11-2020, provided for not opening of the Centres, the Court discussed Para 16 of the said order;

“16. Persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10 years are advised to stay at home, except for essential and health purposes.”

 The Bench explained that, paragraph 16 did not in any manner create any prohibition in opening of Anganwadi Centres as the services provided by Anganwadi Centres were essential services.

 Decision

 The Court held that the State had to provide an appropriate mechanism for supervision and check. Child development officers and other district level officers who were entrusted to monitor the functioning of Anganwadi Centres had to be extra vigilant so that no beneficiary is denied its dues.

In view of the above observations, the Court disposed of the petition with following directions:

  1. All States/Union Territories which had not yet opened Anganwadi Centres should open the same on or before 31-01-2021 situated outside the containment zone.
  2. Decision for not opening Anganwadi Centres should be taken only after the State Disaster Management Authority direct for not opening of Anganwadi Centres in particular area of the State situated outside containment zone.
  3. Anganwadi Centres situated in the containment zone shall not be opened till the containment continues.
  4. All States/Union Territories should ensure that nutritional standards as provided in Schedule II of National Food Security Act, 2013, is fulfilled by providing nutritional support to pregnant women, lactating mothers, nutritional support to children who suffer from malnutrition.
  5. All the States/Union Territories should issue necessary orders regarding monitoring and supervision of Anganwadi Centres to ensure that benefit reaches to the beneficiaries and a Complaint Redressal Mechanism should be put in place in each district.

[Dipika Jagatram Sahani v. Union of India, 2021 SCC OnLine SC 22, decided on 13-01-2021]


*Justice Ashok Bhushan has penned the judgment

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before the Bench of Rajiv Narain Raina, J., where allegation of submission of false certificates were made.

Facts of the case were such that petitioner and respondent both were selected on the post of Anganwadi Worker. Petitioner had alleged respondent of furnishing a false education certificate showing her to be 8th class pass. Respondent contended that petitioner herself had procured a false resident certificate of Haryana according to which she was not qualified to lay claim to the post of Anganwadi Worker.

High Court was of the view that on these recent developments in the case petitioner had no relief since her claim is based on falsehood. Court is not to exercise its discretionary writ jurisdiction in favour of a party who had relied on false documents, thereby misleading the authorities to obtain resident status. The Court, therefore, dismissed this petition with a view that it is for the State Government to consider if the respondent can be continued on the post of Anganwadi Worker. [Jeenat v. State of Haryana, 2019 SCC OnLine P&H 233, dated 08-03-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before a Single Judge Bench comprising of Anand Pathak, J., filed against an order where appointment of petitioner was put on hold.

Facts of the case are that petitioner and respondent applied for a post of Anganwadi worker at Gram Panchayat where petitioner was not appointed. Aggrieved by the above an appeal was preferred before the Collector District Gwalior who directed Project Officer to issue appointment order after which petitioner was appointed. Respondent aggrieved by this filed an appeal before the Commissioner/Additional Commissioner where the stay was granted on the order by which petitioner was appointment.

Petitioner submitted that appellant authority was not having the power to issue an interim order. The case of Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225 was referred stating once powers are not given then it cannot be borrowed. Petitioner contended that the nature of order passed would amount to the final relief which could not have been awarded. Whereas respondent submitted that appellant authority has inherent power to issue an interim order by virtue of its power to hear an appeal.

The High Court viewed that impugned order withholds the appointment of petitioner which is a relief final in nature and interim relief which is final in nature could not have been granted, therefore, impugned order was set aside. [Rekha Jatav v. State of M.P.,2018 SCC OnLine MP 679, dated 06-10-2018]