Kerala High Court
Dr. T.M. Thomas vs St. Johns College on 26 March, 2026
RFA NO. 350 OF 2015 1 2026:KER:26953
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 26th DAY OF MARCH 2026 / 5TH CHAITHRA, 1948
RFA NO. 350 OF 2015 (E)
AGAINST THE JUDGMENT & DECREE DATED 31.07.2013 IN OS
NO.232 OF 2009 OF SUB COURT, PATHANAMTHITTA
APPELLANT/PLAINTIFF:
DR. T.M. THOMAS,
S/O.T.P.MATHAI, THADATHUKALAYIL,
NALKKALLACKAL.P.O, KIDANGANNUR MURI AND VILLLAGE,
KOZHENCHERRY, PIN-689514.
BY ADVS. SRI.M.P.MADHAVANKUTTY
SHRI.S.RANJIT (K/250/1999)
RESPONDENTS/DEFENDANTS:
ST. JOHNS COLLEGE,
1
REPRESENTED BY CHERIYAN JOHN, THE 2ND RESPONDENT,
PRIYADARSINI HILLS, PRAKKANAM.P.O,
PATHANAMTHTITTA, PIN-689643.
2 CHERIYAN JOHN, CHAIRMAN,
ST.JOHNS COLLEGE,PRIYADARSINI HILLS,
PRAKKANAM P.O., PATHANAMTHITTA, PIN-689643.
R1 BY ADVS. SHRI.V.A.MUHAMMED
SRI.K.A.MANZOOR ALI
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING
ON 26.03.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal is filed by the plaintiff in O.S.No.232 of 2009 on the
file of the Subordinate Judge’s Court, Pathanamthitta, against the
dismissal of a suit filed for compensation against the respondents,
as not maintainable.
2. The suit was filed by the appellant herein for realization of
compensation of Rs.2,30,000/-. It was pleaded that the plaintiff, a
retired English Lecturer, with 32 years of service, applied for a post
of dean at the 1st defendant College. He was selected after an
interview with a salary of Rs.12,000/-. The plaintiff alleges that,
without any notice, his services were terminated. Thus, his
appointment, which was to be till 02.05.2010, was abruptly ended on
02.02.2009.
3. The first respondent College in the written statement filed
contended that it was affiliated with the Mahatma Gandhi
University, formed under the provisions of the Mahatma Gandhi
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University Act, with the approval of AICTE. Thus, it was contended
that no suit was maintainable under the provisions of the Mahatma
Gandhi University Act.
4. The trial court considered the issue of maintainability,
particularly with respect to Section 63 of the Mahatma Gandhi
University Act 1985, which bars the civil court’s jurisdiction and
held in favour of the defendant.
5. The learned counsel for the appellant contends that the
petitioner is not a teacher within the meaning of the Mahatma
Gandhi University Act and therefore Section 63 will have no
application. Consequently, Section 70 also has no application. It is
argued that the claim of the petitioner cannot be held to be barred,
as he was not challenging the propriety of the order of termination,
but he was claiming damages as he was prevented from working till
2010. It is also argued that even assuming that the Act creates a
right, it does not provide a remedy, and the petitioner cannot claim
a relief of compensation from the Tribunal. The learned counsel
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also relies on the judgment of the Honourable Supreme Court in
Saraswati and Others v. Lachanna (dead) through Lrs. [1994 KHC
1107] to substantiate the said contention.
6. Learned counsel appearing for the respondents contends
that the very claim of compensation can be considered only if it is
found that the termination is illegal, which, under the provisions of
the Act, can only be considered by the Tribunal and therefore, the
relief of compensation could not have been granted without first
adjudicating as to whether the termination is legal or not.
7. Heard the learned counsel appearing on both sides and
perused the records.
8. ‘Teacher’ is defined under Section 2 (29) of the Mahatma
Gandhi University Act, as follows.
“”Teacher” means a principal, professor, associate
professor, assistant professor, reader, lecturer, instructor,
or such other person imparting instruction or supervising
research in any of the colleges or recognised institutions
and whose appointment has been approved by the
University”.
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9. Section 63, which deals with the disciplinary powers of the
Educational Agency over teachers of private colleges, certainly
enables any teacher aggrieved by an order imposing on him any of
the following penalties, namely, removal from service, compulsory
retirement from service or dismissal from service, to attack the said
proceedings before the Appellate Tribunal. Likewise, under Section
70 of the Act, which bars the jurisdiction of civil courts, no civil
court shall have jurisdiction to settle, decide or deal with any
question or to determine any matter which is by or under this Act
required to be settled, decided or dealt with or to be determined by
any authority or person under this Act.
10. A reading of the above provisions would show that the
appellant cannot be considered as a teacher as his appointment was
not approved by the University and consequently cannot invoke the
remedy under Section 63 before the Tribunal. The bar of
jurisdiction also applies only for considering the matters which are
provided for under this Act, and for that short reason, the appellant
RFA NO. 350 OF 2015 6 2026:KER:26953cannot invoke the jurisdiction of the Tribunal. That apart, without
deciding as to whether the appellant is a teacher, neither Section 63
nor Section 70 could have been invoked by the Civil court and the
said issue as to whether the petitioner is a teacher is surely a mixed
question of fact and law. Under such circumstances, recourse to the
provisions of Order XIV C.P.C and considering the question of
maintainability as a preliminary issue is illegal. It is also to be
remembered that there is no provision under which the petitioner
could obtain compensation from the Tribunal. The said remedy is
not provided under the statute. Under such circumstances, the bar
created under the Act will not prevent the petitioner from filing a
suit under Section 9 CPC.
11. In Ganga Bai v. Vijai Kumar [AIR 1974 SC 1126], the
Supreme Court held that every person has an inherent right to
institute a suit of a civil nature unless expressly or impliedly barred
by statute, and maintainability does not depend on the existence of
an enabling provision but only on the absence of a statutory bar.
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12. In Dhulabhai v. State of Madhya Pradesh [AIR 1969 SC 78],
it was laid down that exclusion of civil court jurisdiction is not to be
readily inferred and arises only where the statute creates a special
right or liability, provides an adequate and efficacious remedy
before a special forum, and expressly or impliedly bars jurisdiction,
while civil courts retain jurisdiction where statutory provisions are
not complied with, principles of judicial procedure are violated,
constitutional validity is challenged, or the statute does not provide
a mechanism for granting the relief claimed.
13. The Honourable Supreme Court in the judgment in Shiv
Kumar Chadha v. Municipal Corporation of Delhi and Others [(1993)
3 SCC 161] held as follows:
“9. In spite of several pronouncements of this Court
during the last four decades, the question as to whether
the jurisdiction of the Court has been statutorily barred
in respect of suits in connection with the orders passed
or proceedings initiated for demolition of constructions,
which have been made without sanction or by deviating
from the sanctioned plans, has to be answered.
10. Section 9 of the Code of Civil Procedure, (hereinafter
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referred to as “the Code”) says that Courts shall have
jurisdiction to try all suits of civil nature “except suits of
which their cognizance is either expressly or impliedly
barred”. According to the Corporation once the
jurisdiction of the Court to try a suit in which the
validity of any order passed under the provisions of the
Corporation Act or the notice issued thereunder has been
specifically barred and an internal remedy has been
provided for redressal of the grievances of the persons
concerned, there is no scope for court to entertain a suit.
11. In the olden days the source of most of the rights and
liabilities could be traced to the common law. Then
statutory enactments were few. Even such enactments
only created rights or liabilities but seldom provided
forums for remedies. The result was that any person
having a grievance that he had been wronged or his
right was being affected, could approach the ordinary
civil court on the principle of law that where there is a
right there is a remedy – ubi jus ibi remedium. As no
internal remedy had been provided in the different
statutes creating rights or liabilities, the ordinary civil
courts had to examine the grievances in the light of
different statutes. With the concept of the welfare State,
it was realised that enactments creating liabilities in
respect of payment of taxes, obligations after vesting of
estates and conferring rights on a class of citizens,
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should be complete codes by themselves. With that object
in view, forums were created under the Acts themselves
where grievances could be entertained on behalf of the
persons aggrieved. Provisions were also made for appeals
and revision to higher authorities.
12. Then a question arose as to where a particular Act
had created a right or liability and had also provided a
forum for enforcement of such right or for protection
from enforcement of a liability without any authority in
law, whether a citizen could approach a court. It may be
pointed out that many statutes have created certain
rights or liabilities and have also provided the remedial
measures in respect thereof. But such statutes have not
touched the common law rights of the citizen. But there
are some statutes, which in public interest affect even
the common law rights or liabilities of the citizen, which
were in the nature of existing rights. The distinction
between the two types of rights or liabilities is subtle in
nature but at the same time very vital.
13. In one of the earliest case of Wolverhampton New
Waterworks Co. v. Hawkesford, (1859) 6 CB NS 336 : 141 ER
283, Willes, J, said:
“There are three classes of cases in which a
liability may be established founded upon a
statute. One is, where there was a liability
existing at common law, and that liability is
RFA NO. 350 OF 2015 10 2026:KER:26953affirmed by a statute which gives a special
and peculiar form of remedy different from
the remedy which existed at common law :
there, unless the statute contains words
which expressly or by necessary implication
exclude the common-law remedy, and the
party suing has his election to pursue either
that or the statutory remedy. The second
class of cases is, where the statute gives the
right to sue merely, but provides no
particular form of remedy : there, the party
can only proceed by action at common law.
But there is a third class, viz. where a
liability not existing at common law is
created by a statute which at the same time
gives a special and particular remedy for
enforcing it. The present case falls within
this latter class, if any liability at all exists.
The remedy provided by the statute must be
followed, and it is not competent to the
party to pursue the course applicable to
cases of the second class.”
14. The same view was reiterated by the House of Lords in
Neville v. London “Express” Newspaper Ltd., (1919) AC
368 : (1918-19) All ER Rep 61. In Barraclough v. Brown,
(1897) AC 615 : (1895-99) All ER Rep 239, 241-I, it was said:
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“I do not think the appellant can claim to
recover by virtue of the statute, and at the
same time insist upon doing so by means
other than those prescribed by the statute
which alone confers the right.”
15. It has further pointed out “the right and the remedy
are given uno flatu, and the one cannot be dissociated
from the other.”
16. In the well-known case of Secretary of State v. Mask
& Co., AIR 1940 PC 105 : 67 IA 222 : (1940) 2 MLJ 140, this
question was considered in connection with Sea Customs
Act (1878). It was said:
“It is settled law that the exclusion of the
jurisdiction of the civil courts is not to be
readily inferred, but that such exclusion
must either be explicitly expressed or
clearly implied. It is also well settled that
even if jurisdiction is so excluded, the civil
courts have jurisdiction to examine into
cases where the provisions of the Act have
not been complied with, or the statutory
tribunal has not acted in conformity with
the fundamental principle of judicial
procedure.”
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But having enunciated the general principle in respect of
ouster of the jurisdiction of the civil court it was said:-
“But, in their Lordships’ opinion, neither
Section 32 nor the principle involved in the
decision in the case of Secretary of State for
India in Council v. Moment, (1912) 40 IA 48 :
ILR (1913) 40 Cal 391, affect the validity of an
Act of the Indian Legislature which creates
an obligation and provides an exclusive Code
for its determination; such an obligation is
not covered by sub-section (2) of Section
32.”
17.In connection with the imposition of Terminal Tax on
salt under the Punjab Municipal Act, in Firm Seth
Radha Kishan v. Administrator, Municipal committee.
Ludhiana, AIR 1963 SC 1547 : (1964) 2 SCR 273 : 65 Punj LR
912, it was said that where a statute created a liability
and provided a remedy, party aggrieved should pursue
the remedy provided under the Act. A Constitution Bench
of this Court in Firm of Illuri Subbaya Chetty and Sons
v. State of A.P, AIR 1964 SC 322 : (1964) 1 SCR 752 : (1963)
50 ITR 93, considered the provisions of Madras General
Sales Tax Act and the exclusion of the jurisdiction of the
civil court. It was pointed out that there was an express
and unambiguous prohibition and no suit could be
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entertained by a civil court. In connection with the
Bombay Sales Tax Act the same view was reiterated by a
Constitution Bench of this Court in Kamala Mills Ltd. v.
State of Bombay, AIR 1965 SC 1942 : (1966) 1 SCR 64 : 57
ITR 643. In Ram Swarup v. Shikar Chand, AIR 1966 SC
893 : (1966) 2 SCR 553, a Constitution Bench examined the
bar on the jurisdiction of the civil court in connection
with the House and Tenants – U.P. (Temporary) Control of
Rent and Eviction Act, and came to the conclusion that a
special statute had excluded the jurisdiction in clear and
unambiguous words and it had provided an adequate and
satisfactory alternative remedy to a party, that may be
aggrieved by the relevant order and as such the
jurisdiction of the civil court had been ousted. This very
question was examined in State of Kerala v. N.
Ramaswami Iyer and Sons, AIR 1966 SC 1738 : (1966) 3 SCR
582 : (1966) 61 ITR 187, in connection with the
Travancore-Cochin General Sales Tax Act and it was held
that the jurisdiction of the civil court would be deemed to
have been excluded because the legislature had set up a
special tribunal to determine the question relating to
rights or liabilities which had been created by the statute.
Again in connection with the provisions of the Evacuee
Property Act, in Ram Gopal Reddy, v. Additional
Custodian Evacuee Property, Hyderabad, [1966] 3 SCR 214
: AIR 1966 SC 1438, and Custodian of Evacuee
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Property Punjab v. Jafran Begum, [1967] 3 SCR 736 :
AIR 1968 SC 169, it was held that complete machinery for
adjudication of all claims had been provided under the
Act and there being a bar on the jurisdiction of any court,
the Act overrides other laws, including Section 9 of the
Code of Civil Procedure and there was no scope for the
civil court to entertain any suit.”
14. Given the above principles, the finding of the trial court
that the civil court lacks jurisdiction to try the case is clearly an
error of law. Accordingly, the impugned judgment and the decree
will stand set aside. There will be a direction to the Subordinate
Judge’s court, Pathanamthitta, to consider and dispose of
O.S.No.232/2009 in accordance with the law. The parties shall
appear before the trial court on 28.05.2026.
The regular first appeal is allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
DMR/-