Bodala Murali Krishna Vs. Smt. Bodala Prathima - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. orderl. narasimha reddy, j.1. the petitioner is the husband of the respondent. their marriage took place in the year 1977 and were blessed with a child. the respondent filed h.m.o.p.no. 136 of 2004 in the court of additional senior civil judge, narsaraopet, against the petitioner, for divorce under section 13 of the hindu marriage act, 1955. the trial of the o.p. commenced.2. the petitioner is a resident of u.s.a. he filed i.a.no. 340 of 2006 seeking permission of the trial court for recording his evidence through the video conferencing. the respondent opposed the application. through its order, dated 15-6-2006, the trial court dismissed the i.a. hence, this c.r.p.3. sri d. jagan mohan reddy, learned counsel for the petitioner, submits that there is nothing in the evidence act or c.p.c., which prohibits the recording of evidence through the video conferencing and in fact, the recent amendments to the evidence act, are in the direction of permitting such a procedure. he places reliance upon the judgments rendered by the hon'ble supreme court and the high courts of karnataka and calcutta.4. sri p. vijaya kiran, learned counsel for the respondent, on the other hand, submits that the effort of the petitioner is to avoid the production of passport, which contained an entry to the effect that a woman, by name, satya, is married to him, and to avoid any pertinent questions. he contends that the recognized methods of cross-examination of witnesses are through appearance in the court, or by appointing a commissioner, and not otherwise.5. the only question that arises for consideration in this c.r.p., is as to whether the petitioner can be extended the facility of deposing as a witness before the trial court, through the process of video conferencing?6. the amendments carried to the evidence act by introduction of sections 65a and 65b are in relation to the electronic record. sections 67a and 73a were introduced as regards proof and verification of digital signatures. as regards presumption to be drawn about such records, sections 85a, 85b, 85c, 88a and 90a were added. these provisions are referred only to demonstrate that the emphasis, at present, is to recognize the electronic records and digital signatures, as admissible pieces of evidence. it is no doubt true that the recording of evidence through the process of video conferencing is not specifically referred to in these provisions.7. examination of witnesses in criminal cases, through videoconferencing was approved by the supreme court in a judgment reported in state of maharashtra v. dr. praful b. desai 2003 (2) alt (crl.) 118 (sc). when such is the facility accorded in criminal cases, there should not be any plausible objection for adopting the same procedure, in civil cases as long as the necessary facilities, with assured accuracy exist. in twentieth century fox film corporation v. nri film production associates (p) ltd. : air2003kant148 . and amitabh bagchi v. ena bagchi : (2004)3callt263(hc) . high courts of karnataka and calcutta held that recording of evidence through video conferencing is permissible in law, provided that necessary precautions must be taken, both as to the identity of the witnesses and accuracy of the equipment, used for the purpose. certain guidelines were indicated therein. the party, who intends to avail such facility, shall be under obligation to meet the entire expenditure.8. for the foregoing reasons, c.r.p., is allowed and the order under revision is set aside. the i.a., shall stand allowed, subject to the conditions that:(a) it shall be the obligation of the petitioner to arrange the necessary equipment for recording the evidence through video conferencing, duly satisfying the trial court as to the accuracy of the equipment and identity of the witness;(b) the petitioner shall be under obligation to display the passport and its individual pages as may be demanded, on behalf of respondent, and he shall abide by the directions of the court, issued during the course of recording;(c) the petitioner shall make necessary arrangements forundertaking this exercise within one month from to-day, in default, the trial court shall proceed with the other steps.9. there shall be no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. The petitioner is the husband of the respondent. Their marriage took place in the year 1977 and were blessed with a child. The respondent filed H.M.O.P.No. 136 of 2004 in the Court of Additional Senior Civil Judge, Narsaraopet, against the petitioner, for divorce under Section 13 of the Hindu Marriage Act, 1955. The trial of the O.P. commenced.

2. The petitioner is a resident of U.S.A. He filed I.A.No. 340 of 2006 seeking permission of the trial Court for recording his evidence through the video conferencing. The respondent opposed the application. Through its order, dated 15-6-2006, the trial Court dismissed the I.A. Hence, this C.R.P.

3. Sri D. Jagan Mohan Reddy, learned counsel for the petitioner, submits that there is nothing in the Evidence Act or C.P.C., which prohibits the recording of evidence through the video conferencing and in fact, the recent amendments to the Evidence Act, are in the direction of permitting such a procedure. He places reliance upon the judgments rendered by the Hon'ble Supreme Court and the High Courts of Karnataka and Calcutta.

4. Sri P. Vijaya Kiran, learned counsel for the respondent, on the other hand, submits that the effort of the petitioner is to avoid the production of passport, which contained an entry to the effect that a woman, by name, Satya, is married to him, and to avoid any pertinent questions. He contends that the recognized methods of cross-examination of witnesses are through appearance in the Court, or by appointing a Commissioner, and not otherwise.

5. The only question that arises for consideration in this C.R.P., is as to whether the petitioner can be extended the facility of deposing as a witness before the trial Court, through the process of video conferencing?

6. The amendments carried to the Evidence Act by introduction of Sections 65A and 65B are in relation to the electronic record. Sections 67A and 73A were introduced as regards proof and verification of digital signatures. As regards presumption to be drawn about such records, Sections 85A, 85B, 85C, 88A and 90A were added. These provisions are referred only to demonstrate that the emphasis, at present, is to recognize the electronic records and digital signatures, as admissible pieces of evidence. It is no doubt true that the recording of evidence through the process of video conferencing is not specifically referred to in these provisions.

7. Examination of witnesses in criminal cases, through videoconferencing was approved by the Supreme Court in a judgment reported in State of Maharashtra v. Dr. Praful B. Desai 2003 (2) ALT (Crl.) 118 (SC). When such is the facility accorded in criminal cases, there should not be any plausible objection for adopting the same procedure, in civil cases as long as the necessary facilities, with assured accuracy exist. In Twentieth Century Fox Film Corporation v. NRI Film Production Associates (P) Ltd. : AIR2003Kant148 . and Amitabh Bagchi v. Ena Bagchi : (2004)3CALLT263(HC) . High Courts of Karnataka and Calcutta held that recording of evidence through video conferencing is permissible in law, provided that necessary precautions must be taken, both as to the identity of the witnesses and accuracy of the equipment, used for the purpose. Certain guidelines were indicated therein. The party, who intends to avail such facility, shall be under obligation to meet the entire expenditure.

8. For the foregoing reasons, C.R.P., is allowed and the order under revision is set aside. The I.A., shall stand allowed, subject to the conditions that:

(a) it shall be the obligation of the petitioner to arrange the necessary equipment for recording the evidence through video conferencing, duly satisfying the trial Court as to the accuracy of the equipment and identity of the witness;

(b) the petitioner shall be under obligation to display the passport and its individual pages as may be demanded, on behalf of respondent, and he shall abide by the directions of the Court, issued during the course of recording;

(c) the petitioner shall make necessary arrangements forundertaking this exercise within one month from to-day, in default, the trial Court shall proceed with the other steps.

9. There shall be no order as to costs.