JUDGMENT Devinder Gupta, J.—Both the aforementioned appeals can conveniently be disposed of by a common judgment, since some of the facts, as also the question of law, arising for determination are same and similar. 2. The appeals were admitted on the following questions of law: I. Whether the civil courts had jurisdiction to entertain the suit, once this Honble Court in C.W.P. No. 34 of 1986, titled Kishan Chand and 17 others v. U O I. and others to which the plaintiff was a party-respondent duly served had upheld the action of the appellants in terminating her appointment ? 2 Whether the suit was barred by principles of res-judicatal constructive res-judicata? 3. Whether the suit of the plaintiff was maintainable in the Civil Courts below? 3. The background in which the appeals have arisen may be stated in brief A writ petition C. W. P. 87 of 1985 was filed by one Mari Devi in this Court seeking directions against appellant No, 1 to employ her and others similarly situate widows/wards of deceased work-charged employees of Beas Construction Board (B.C.B.), Beas Sutlej Link Project (B S L) on regular basis The appellants had put their version in the reply filed in the said writ petition that the widows and other wards of the deceased work-charged employees of BCB. were employed in the said Board after the death of their husbands/fathers as Dak Runners in work-charged capacity. These work-charged employees did not qualify for being taken in the appellant-Board as per the award/ directions contained in the industrial award made in Reference No. 2-C/ 71. It is the appellants* case that during the course of hearing arguments in the writ petition, a scheme was framed by the appellant-Board on the suggestion of the Courts which after certain modifications was approved on 5th October, 1985. 4. According to the aforesaid scheme, individual cases of widows/ wards of the deceased employees, keeping in view the compassion of each case were considered by the appellant-Board, as per the directions contained in the order of the High Court and on the basis of the affidavit submitted by the candidates Thirty posts of Beldar were filled in, who were found eligible for employment as per the scheme. One of the stipulations in the scheme was that if the affidavit submitted by the candidate is found incorrect, it would entail in termination of employment. 5. One of the stipulations in the scheme was that if the affidavit submitted by the candidate is found incorrect, it would entail in termination of employment. 5. As per the provisions of the scheme, both Jethi Devi and Heema Devi, plaintiffs in civil suits, giving rise to R S A. 261/92 and R.S A. 263/92, respectively, submitted affidavits in support of their respective claims for being employed as widows of the deceased employees. After scrutiny of the affidavits, they were selected and were employed as Beldars in the works by the appellant-Board on and with effect from 30th December, 1985. 6. One Kishan Chand and 17 others, who also claimed themselves to be the wards/widows of the deceased work-charged employees, again approached this Court by filing C.W.P. No 34 of 1986, wherein they claimed that the appellants had not implemented the orders, passed in the writ petition filed by Mari Devi, in letter and spirit As per the scheme, they claimed their preferential right of being employed. It was also alleged by them that six widows/wards, who had been given employment by the appellant-Board, were, in fact, not eligible, as they had filed wrong and incorrect affidavits, while procuring employment. Both the plaintiffs-respondents herein were arraigned as respondents 4 and 8, respectively in the said writ petition. 7. It is also the appellants case that during the pendency of the aforementioned writ petition filed by Kishan Chand and others, a complaint was lodged by Mari Devi with the Chief Engineer, B.B.M.B. alleging that six widows had sought employment by filing wrong affidavits. On receipt of the said complaint, the same was forwarded to Deputy Commissioner, Mandi, for enquiry, who in turn forwarded the same to the concerned Sub Divisional Officer (Civil). The appellant-Board also had apprised the Division Bench of this Court in C.W P. 34/1986 of the fact that the enquiry was in progress on the complaint of Mari Devi and Kishan Chand etc. The appellant-Board also had apprised the Division Bench of this Court in C.W P. 34/1986 of the fact that the enquiry was in progress on the complaint of Mari Devi and Kishan Chand etc. regarding the filing of wrong affidavits and ultimately on receipt of the enquiry from the concerned Sub-Divisional Officers (Civil), in which it was reported that the plaintiffs had filed wrong affidavits, show-cause notices were served upon them to show cause as to why their services be not terminated for having filed wrong affidavits while seeking employment with the appellant-Board The Court was also informed by the appellant-Board that in view of the findings, as a result of the enquiry, the Board had decided to withdraw the benefits allowed by it to the plaintiffs, which fact was noticed by the Court. The Court directed the appellant-Board to complete the process of hearing the plaintiffs, within a period of four weeks and in case appointments of the plaintiffs are revoked, it was directed that the resultant vacancies would be filled up, in accordance with the scheme. 8. After the show-cause notice had been served on the plaintiffs and they had been heard, their engagement was discontinued, which fact was also brought to the notice of the Division Bench of this Court in C.W.P. 34/1986. After noticing the said fact, the Court gave a positive direction that necessary action would be taken for offering appointments in the resultant vacancies on the posts vacated by plaintiffs Jethi Devi and Heema Devi and necessary appointment orders would be issued within two weeks. It is the appellants case that thereafter two other persons were employed in the vacancies so caused because of the termination of the services of the plaintiffs. One of the plaintiffs, namely, Heema Devi, moved CM P. 1256/1987 in C.W P. 34/1986, challenging her termination from the service. The application was rejected by the Court on 16th December, 1986 and according in the appellants, the matter thus stood concluded. 9. Both the plaintiffs filed two separate suits in the Court of Sub-Judge, Mandi, alleging that their services have been wrongly terminated by the Board. Reasonable and adequate opportunity was not afforded to them by the Board and it accepted the report of the Deputy Commissioner, Mandi, blindly, which, in fact, was incorrect and that their services could not have been terminated on the basis of the said report. Reasonable and adequate opportunity was not afforded to them by the Board and it accepted the report of the Deputy Commissioner, Mandi, blindly, which, in fact, was incorrect and that their services could not have been terminated on the basis of the said report. The suits were contested by the Board on number of grounds, namely, that once the matter had concluded by virtue of various orders passed in C.W.P. 34/1986, the suit was neither competent, nor maintainable and was barred by the principles of res-judicata and that the Court had no jurisdiction, to sit over as a Court of appeal, over the action taken by the Board, in pursuance to the show-cause notice. 10. The suit filed by Jethi Devi was decreed on 30th November, 1S89 and the other filed by Heema Devi on 22nd February, 1990. Two separate appeals were preferred by the appellant-Board before the lower appellate Court, which were dismissed by two separate judgments on 30th January, 1992. The present are the appeals arising out of the said judgments and decree of the lower appellate Court. 11. Questions 1 and 2, as formulated, are inter-linked. The submission made by Mr. Bawa, on behalf of the defendants-appellants, is that question for determination had arisen in CWP 34/1986, Kishan Chand and others v. Union of India and others; which stood concluded. It was during the pendency of the writ petition that the appellant-Board had received the enquiry reports from the Deputy Commissioner, Mandi, which were to the effect that the affidavits filed by the plaintiffs were wrong. On the basis of the said reports, show-cause notices were got served upon the plaintiffs. They were thereafter heard and ultimately orders terminating their services were passed. The Division Bench of this Court was duly informed regarding the reports, the fact of having served the plaintiffs with show-cause notices as also the fact of their services having been terminated after recording that the affidavits furnished by them were wrong. The entire material was placed before the Court and after noticing these facts, the Court issued directions to the appellant-Board to offer employment to two other persons. The entire material was placed before the Court and after noticing these facts, the Court issued directions to the appellant-Board to offer employment to two other persons. Heema Devi also challenged the order of her termination by filing application in CW.P 34/1986, which was dismissed and thus the issues, which have been raised in the suits filed by the plaintiff, namely, as to whether the termination was illegal, void and without jurisdiction was decided in the writ petition or in any case it was open to both the plaintiffs to have questioned their termination in writ petition and consequently the suits would be barred under the principles of constructive res-judicata. Heema Devi also, in addition, sought to challenge the decision, which application was dismissed, Thus the Courts below were not right in deciding the suits on merits, which ought to have been dismissed being barred. 12. The appellants, who had raised the issue of res-judicata felt satisfied only by placing on record certified copies of interim orders passed in C.WP, 34/1986. Neither the copy of the writ petition, nor other pleadings were placed on record. When a party raises a plea of resjudicata, the burden of establishing the same lies on the parity raising the same. Section 11 of the Code of Civil Procedure embodies the doctrine of res-judicata or the rule of collusiveness of judgment as to the points decided in every subsequent suit between the same parties. 13. The question whether a matter was directly and substantially in issue in the former suit has to be decided on the pleadings in the former suit, the issues struck therein and the decision in the suit. Further, it depends upon whether a decision on such an issue will materially affect the decision of the suit. (See : Isher Singh v. Sarwan Singh and others, AIR 1965 SC 948). 14. In the instant case, as noticed above, neither a copy of the writ petition, nor of the reply was brought on record, in order to ascertain whether the issues raised in the instant suits had been finally heard and decided. There is another requirement of law also, namely, that the decision in the former suit must have been on merits, as has been held in Sheodan Singh v Daryao Kanwar, AIR 1966 SC 1332, that I “..... There is another requirement of law also, namely, that the decision in the former suit must have been on merits, as has been held in Sheodan Singh v Daryao Kanwar, AIR 1966 SC 1332, that I “..... in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiffs appearance, or on the ground of nonjoinder of parties or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res-judicata in a subsequent suit......" 15. Though, it would not have been permissible, while hearing the appeals, to look into any other record, other than the one pertaining to these appeals, yet in order to do a substantial justice, a question was posed to the learned Counsel for the parties as to what objection they would have, if in case reference is made to the record of C.W.P. 34/1986, from which record only some of the copies have been placed on record Both the Counsels agreed that they will have no objection in case record is looked into and made use, while disposing of the appeals. 16. Though in the writ petition, a question had been raised by Kishan Chand and others that both Jethi Devi and Heema Devi have filed wrong affidavits and they had been given employment in violation of the scheme, they were also party-respondent in the said writ petition. After a show-cause notice in the writ petition had bean served, they were duly served but did not put in appearance. After a show-cause notice in the writ petition had bean served, they were duly served but did not put in appearance. The writ petition was not admitted for final hearing and was also not decided on merits. It was disposed of after recording some interim order. After the show-cause notice had been served and the appellant-Board had put ia appearance and placed on record copies of the report, which it sought from the Deputy Commissioner, Mandi, an order was passed on 2lst July, 1987- The relevant portion of which is reproduced hereunder : "The Court has examined the materials placed on the record by way of several affidavits. It transpires that respondents No 4 and 8 procured appointment on compassionate grounds under the Scheme on the basis of material which is now found to be false/ incorrect. Steps have been initiated by the competent authority to withdraw the benefit accordingly granted to those respondents. Those proceedings are directed to be completed within a period of four weeks from today. In case the appointment of those respondents is revoked, the resultant vacancies will be filled in accordance with the Scheme and the observations made in the course of this order.” 17. From the aforementioned order, it is clear that the Court did notice the material, which had been placed before it and formed an opinion that the plaintiffs had procured the appointment on compassionate ground under the scheme, on the basis of the material found in the report to be false/incorrect. The Court also noticed that steps had been taken by the Board to withdraw the benefit granted to the plaintiffs. The Court accordingly directed to complete the process and in case the appointments are revoked, to offer resultant vacancies to other eligible persons. 18. The Chief Engineer of BSL Project, Sundernagar, filed his affidavit dated 20th October, 1987, pointing out that as a result of the show-cause notice having been served upon Jethi Devi and Heema Dzvi, their services stood dispensed with. Noticing these facts, the Court on 27th October, 1987, passed the following order; "The Court has perused the affidavit dated October 20, 198 7, filed by the Chief Engineer, BSL. Sundernagar. Necessary action has been taken in two cases and petitioners No. 2 and 16 have been decided to be offered appointment in the resultant vacancies in the posts vacated by Heema Devi and Jethi Devi. Sundernagar. Necessary action has been taken in two cases and petitioners No. 2 and 16 have been decided to be offered appointment in the resultant vacancies in the posts vacated by Heema Devi and Jethi Devi. The necessary appointment orders will issue within a period of two weeks from today." 19. From the aforementioned two orders, it is clear that the Court did not adjudicate on the question as to whether the order of termination passed by the respondent-Board was or was not liable to be set aside on the grounds raised in the two suits filed by the plaintiffs The Court only proceeded to record a fact which had happened, namely, holding of some enquiry by Deputy Commissioner, Mandi, or at his instance by the Sub Divisional Officer (Civil) concerned. Submission of the said report to the appellant-Board and on receipt of the same the Board issuing show-cause notices to the plaintiffs. The Court also noticed a fact that in pursuance to the show-cause notices services were terminated Neither the question, which had been raised therein nor there was any occasion to decide *he question whether the orders of termination were liable to be quashed and set aside or whether the enquiry conducted by the Deputy Commissioner was or was not in consonance with law or whether the report of the enquiry could have been made the basis for terminating the services of the plaintiffs. In order to support the plea of res-judicata, it is not enough that the parties are the same and that the same matter is in dispute. It must also be shown that the matter was heard and finally decided. It is nowhere shown by the appellants that the issues arising in the instant suits had been heard and finally decided in the writ petition. 20. Even the application of Heema Devi was not dismissed on merits. The Court dismissed the same by observing that her remedy, if any, was not in moving the application in a decided writ petition but to seek review of the order. Instead of filing a review, she filed a civil suit. 21. Thus, in view of the above, it has to be held that matters, as raised in tbe instant suits, had not been heard and finally decided and the suits were not barred by the principles of res judicata or constructive res-judicata. 22. Instead of filing a review, she filed a civil suit. 21. Thus, in view of the above, it has to be held that matters, as raised in tbe instant suits, had not been heard and finally decided and the suits were not barred by the principles of res judicata or constructive res-judicata. 22. Now turning to the next question in R.S A. 263/1992, pertaining to Heema Devi. In her suit, finding was recorded by the trial Court that the principles of natural justice were not followed and no opportunity worth the name was afforded to her while terminating her services. This finding has been affirmed by the lower appellate Court, Otherwise also, in this case, both the courts below found that the order of termination is based upon the findings of Sub-Divisional Officer (Civil), Sadar Mandi, which was conveyed to the Executive Engineer, B. S, L Project, Sundernagar, by Deputy Commissioner, Mandi, vide letter dated 8th May, 1987, Ex DW 1/F, who had opined that the cause of death was poisoning, as recorded in the municipal record. The show-cause notice, Ex. D-2, which was served upon the plaintiff was that her husband had committed suicide by taking poison, since civil authorities had reported that he died because of poisoning These facts were disputed by the plaintiff No effort was made by the appellant to lead any evidence worth the name proving that the death had occurred due to poisoning. The communication by t he Deputy Commissioner to the Executive Engineer was based upon some report, The said report was not produced on record. It was necessary for the appellants to have produced on record material showing that the death was not natural but was unnatural one and resultantly the affidavit filed by the plaintiff was false The Courts below found, as a matter of fact, that the order of termination was not based upon any legal evidence The jurisdiction of the civil court was challenged by urging that the civil court will not sit as a Court of appeal. No doubt, in such like suits, the scope is very limited in order to find as to whether the principles of natural justice were followed and the order is based upon some evidence on record. No doubt, in such like suits, the scope is very limited in order to find as to whether the principles of natural justice were followed and the order is based upon some evidence on record. When a finding has been recorded that neither proper opportunity was afforded, nor the order of termination is based upon any legal evidence, there is no manner of doubt that the civil court rightly held the suit to be competent and maintainable and rightly granted declaration in plaintiffs favour. As such this appeal deserves dismissal. 23. In the other appeal, namely, R.S A. 261/1992, the trial Court recorded a finding that tbe order of termination was bad, inasmuch as, the show cause notice was based upon two aspects, namely, the affidavit submitted by her, seeking employment was wrong and that she had contracted a second marriage. The Court found that there was no evidence that wrong affidavit was filed or that she had contracted a second marriage. In this case, I find that the Courts below were not right in granting a decree in plaintiffs favour. The show-cause notice, which admittedly was served upon the plaintiff, is Ex. DW 1/D, which says:- "The matter was got enquired and it was found that Smt Jethi Devi did not solemnize a second marriage with Shri Chandermani, who is the younger brother of her deceased husband Shri Om Dass, S/Shri Om Dass and Chandermani the two brothers alongwith their families used to live jointly and therefore after the death of Shri Om Dass his wife Smt Jethi Devi alongwith her children is now living jointly with the family of Shri Chandermani. Smt. Jethi Devi after the death of her husband has given birth to an illegitimate daughter who has been named as Lata* The local panchayat record does not show Lata as the daughter of Shri Chandermani. Her father is unknown, therefore, in Panchayat record only the name of her mother Smt. Jethi Devi has been entered" 24. The report, copy of which was duly served upon the plaintiff, alongwith the show-cause, notice submitted by Sub-Divisional Officer (Civil), Chachiot is Ex. DW 1/E, which is to the following effect; "..In Panchayat family register Smt. Jethi Devi has been shown the wife and Kumari Lata the daughter of Shri Chandermani. The report, copy of which was duly served upon the plaintiff, alongwith the show-cause, notice submitted by Sub-Divisional Officer (Civil), Chachiot is Ex. DW 1/E, which is to the following effect; "..In Panchayat family register Smt. Jethi Devi has been shown the wife and Kumari Lata the daughter of Shri Chandermani. Smt. Jethi Devi denies the correctness of these entries and states that she is unaware that how these entries have been made. The Secretary Gram Panchayat also told that he even does not know whether or not Smt Jethi Devi and Shri Chandermani had married with each other. The Secretary said that the entry of their marriage has not been made in the marriage register maintained by the Panchayat. Smt. Jethi Devi and Shri Chandermani admit to have developed illegitimate relations with each other as a result of which they gave brith to Kumari Lata. The statements of Smt Jethi Devi, Shri Chandermani and Shri Het Ram Secretary Gram Panchayat Chaprahan recorded by this office are sent herewith for your kind perusal and further necessary action." 25. As per the scheme, employment was to be offered to only one member of the family, that is, widow of the deceased or wife of a totally disabled person The employment was to be offered on receipt of an application duly supported by an affidavit disclosing the requisite information. It was also provided in the scheme that in case the affidavit submitted by the deponent is found to be wrong subsequently, he/she was likely to be dismissed from the employment without notice An additional clause was added in the scheme by the court to the following effect: "In the matter of offering employment on com passionate grounds preference will be given to the family of a deceased employee and that of a totally disabled employee (in the order of preference) and employment to a partially disabled employee will be given only if no eligible person is coming forth for employment from the above mentioned two categories. In the category of deceased/totally disabled employees, preference for employment on compassionate ground will be given to that family which has the largest number of minor dependent children on the date of application., In the event of the person employed on compassionate grounds dying within a period of one year of the date of employment, the same benefit would be extended to another eligible member of the family." 26. The plaintiff, in this case, in her affidavit Ex. DA stated that her husband Om Dass met with an accident and that there are in all four surviving members in the family of her husband Om Dass. While describing the members of the family, she included herself as also Roma Devi, Lata Devi and Govind Ram in para 8 of the affidavit. It was stated that she bad not re-married after the death of her husband Om Dass In the show-cause notice as also in the report, it was pointed out that Lata Devi was not the daughter of Om Dass but was born to plaintiff after the death of Om Dass and the evidence, which has been led in the case, is that Lata Devi was born after couple of years of the death of Om Dass out of the loin of his brother, though there is no evidence that the plaintiff had remarried with another person. 27. The service of the show-cause notice and receipt of the copy of the report is not disputed It is also not disputed that the affidavit was filed by her. It is also not in dispute by her that Lata Devi was not the daughter of Om Dass and was not a family member of Om Dass In these circumstances, there is no manner of doubt that the affidavit furnished by her claiming job was factually incorrect, wherein she stated that Lata Devi was daughter of Om Dass and thus member of the family of her husband Atleast, on this count the appellants were right in having rightly withdrawn the benefit to the plaintiff Jethi Devi. In this case proper procedure admittedly was followed. Consequently, both the Courts below committed an error of law, while proceeding to dispose of the suit on the ground that the second marriage had not been proved. They erred in not examining the other aspect. In this case proper procedure admittedly was followed. Consequently, both the Courts below committed an error of law, while proceeding to dispose of the suit on the ground that the second marriage had not been proved. They erred in not examining the other aspect. It has to be held that Jethi Devi procured the service by filing wrong affidavit and that in her case proper enquiry was conducted. Thus her suit was liable to be dismissed. The suit, no doubt, was maintainable in civil court. 28. In the result, RSA 261/1992, B. B. M. B. and others v. Jethi Devi, is allowed. The judgments and decree passed by the courts below are set aside and the suit of the plaintiff Jethi Devi is dismissed with no orders as to costs. 29 R. S. A. No. 263 of 1992, B. B. M B and others v. Heema Dev is dismissed with no orders as to costs. R. S. A. 261 allowed. R. S. A. 263 dismissed,