JUDGMENT V. P. Gopalan Nambiyar, J. 1. Ex. P-2 Award of the Industrial Tribunal, Calicut, is challenged in this writ petition. The dispute referred was regarding the dismissal of the 3rd respondent, a driver under the petitioner, the Kerala Transport Co., Calicut. On an earlier occasion the Tribunal by its award dated 1-1-1969 found that the 1st Respondent was entitled to reinstatement with backwages, but as the 1st Respondent was employed elsewhere in the meanwhile, it did not direct reinstatement, but only payment of backwages from the date of denial of employment till 31-3-1968. The management filed O. P. No. 3767 of 1969 in this Court. By Ex. P-1 judgment, the award of the Tribunal was set aside and the Tribunal was directed to deal with the reference afresh and pass a fresh award. The impugned award (Copy Ex. P2) was passed in pursuance of the said direction. 2. The charge against the 3rd respondent was that he had collected false bills from petrol pumps for larger quantities of diesel oil than were actually purchased by him, and on that basis had claimed and received amounts in excess of what was legitimately due. The Tribunal did not find either on the earlier occasion or on the present one that the domestic enquiry was vitiated by violation of principles of natural justice; nor was it found that there was any unfair labour practice or victimisation in passing the order of dismissal, which are the well recognized norms for interference by the Tribunal with the findings of the domestic enquiry. On the earlier occasion, it found that there was an error apparent on the face of a document, produced by the management, which led the Enquiry Officer to arrive at a wrong conclusion and on this ground it granted the relief noticed. Ex. M12 produced at the domestic enquiry and marked as Ex. M9 before the Tribunal was a statement prepared by the management on the basis of documents marked as Exs. M2, M2(a), M3 and M3(a) before the Tribunal and marked respectively as Exs. M11 and M10 before the domestic enquiry. The Enquiry Officer concluded that these documents would show that there was a purchase of 34.53 litres more than the actual fuel consumed. The total distance covered by Exs. M2 and M2(a) was 2174 kms. and the total diesel consumed was taken as 519 litres. M11 and M10 before the domestic enquiry. The Enquiry Officer concluded that these documents would show that there was a purchase of 34.53 litres more than the actual fuel consumed. The total distance covered by Exs. M2 and M2(a) was 2174 kms. and the total diesel consumed was taken as 519 litres. Calculated on that basis, the Enquiry Officer at the domestic enquiry concluded that the lorry consumed on the average one litre of oil to cover 4.18 km. In Ex. M9 the total distance taken together for the trips for the period from 9-11-1965 to 16-11-1965 was only 1893 kms., which is something less than that shown by Exs. M2 and M2(a) for trips for this period. Similarly, Exs. M3 and M3(a) showed the distance covered by the lorry from 23-11-65 to 30-11-1965 as 2043 kms., whereas Ex. M9 showed the distance for this period as only 1934 kms. On account of the discrepancy, the Tribunal on the earlier occasion held that there was no basis for the statement by the Enquiry Officer in the domestic enquiry that Ex. M9 was prepared in accordance with Exs. M2(a) and M3, and as this was the basis on which the Enquiry Officer proceeded, it held that there was a mistake apparent on the face of the documents which had led the officer to a wrong conclusion. In Ex. P1 judgment, rendered in O. P. 3767 of 1969 this Court observed: "5. The Tribunal in this case has apparently not understood the relevance of Ex. M9 and relying on discrepancies which were explainable discarded Ex. M9 altogether and then came to the conclusion that the finding entered by the Enquiry Officer was a wrong conclusion. This is not justified. 6. Counsel for the respondents submitted that even if the total quantity of diesel oil said to have been purchased by the driver is taken into account, the mileage given by the vehicle per litre would show that so much quantity of diesel oil will be required to cover the distance that had been actually covered. It is not for this Court to consider the evidence in the case. The evidence can be looked into by the Tribunal for the purpose of finding out whether on the material before the Enquiry Officer the conclusion reached was a possible conclusion, but only for that limited purpose. 7. It is not for this Court to consider the evidence in the case. The evidence can be looked into by the Tribunal for the purpose of finding out whether on the material before the Enquiry Officer the conclusion reached was a possible conclusion, but only for that limited purpose. 7. In view of the fact that the relevancy and reliability of Ex. M9 has to be examined afresh by the Tribunal in the light of contentions of the petitioner (employer) in deciding the question whether the finding entered at the domestic enquiry is based on evidence, I set aside the award Ex. P1. I am not satisfied that on the ground mentioned by the Tribunal Ex. M9 could be discarded. I am not suggesting that there are not other grounds for rejecting it. This is for the Tribunal to decide. 8. In the light of the above, I set aside Ex. P1 award and direct the first respondent to deal with the reference afresh and come to a fresh decision after affording opportunities to both sides to be heard." 3. The Tribunal on the present occasion noticed that Exs. M3 and M3(a), M2 and M2(a) are documents prepared from the office of the management on the basis of trip sheets, account and bills (which are themselves not produced) submitted after each trip by the driver. It also noticed that the documents were prepared by the office staff of the management in accordance with the time sheet and they were accepted by them as passed by the Manager of the establishment. The Tribunal dealt with the matter thus: "It is stated at the enquiry that the tank was having a capacity of 110 litres. This is taken from the evidence recorded at the enquiry. In arriving at the conclusion that the tank could not have contained as much diesel as was alleged to have been poured they adopt the version of" the driver that it consumed 1. litre of diesel to cover a distance of 4.4 kms. This is what is seen from Ex. M3(a). The details shown in Ex. M9 are being analysed to find the extent to which the statement of the management is correct. It is seen from Ex. M3 that the lorry travelled a distance of 358 miles to reach Trivandrum on 11-11-1965. litre of diesel to cover a distance of 4.4 kms. This is what is seen from Ex. M3(a). The details shown in Ex. M9 are being analysed to find the extent to which the statement of the management is correct. It is seen from Ex. M3 that the lorry travelled a distance of 358 miles to reach Trivandrum on 11-11-1965. It is true that the distance from Ernakulam to Trivandrum is shown as 190 miles. Regarding this aspect it is observed by their Lordships that this is much more than the actual distance. But M1 has no case that the distance shown in Exs. M3 and M3(a) are not correct. It was prepared from their office and if the worker had given a time sheet showing it as 190 miles they could have reduced it when they prepared Exs. M3 and M3(a). It is true that it cannot be changed. But in arriving at this distance the office of the management would have relied on the time sheet or trip sheet submitted by the driver which naturally gives the towns or other important places which the lorry in its journey from Ernakulam to Trivandrum would have touched. Unless these documents are produced it cannot be possible to say whether it travelled 190 miles or less. In accepting this distance and showing it in Exs. M3 and M3(a) it has to be taken for granted that they accepted the position that the lorry travelled 190 miles from Ernakulam to reach Trivandrum. In this connection it may also be pertinent to note that in Exs. M2 and M2(a) the lorry has touched stations which in its general course need not have been touched if the journey is straight from Ernakulam to Trivandrum. Moreover when they prepared Ex. M9 they have shown the distance from Ernakulam to Trivandrum as 265.6 kms. For the return journey also it is shown as 265.6 kms. So when they prepared Ex. M9 they did not take into consideration the distance shown in Ex. M3 and they did not accept the actual distance. M1 does not refer to this discrepancy. He does not say that the lorry has not actually travelled 190 miles to reach Trivandrum. It is the management who has to suggest that the figures shown in Exs. M3 and M3(a) are incorrect. They have not chosen to do so. M3 and they did not accept the actual distance. M1 does not refer to this discrepancy. He does not say that the lorry has not actually travelled 190 miles to reach Trivandrum. It is the management who has to suggest that the figures shown in Exs. M3 and M3(a) are incorrect. They have not chosen to do so. So the figure 190 has to be accepted. If this is accepted then the lorry would have travelled 358 miles to reach Trivandrum on 11-1-1965. 13. It is seen that by this time it had taken 240 litres of diesel oil. This distance of 258 miles when converted into kilometres would be 572.8 kms. and taking the average at 4.4 the lorry would have consumed 130 litres. The capacity of the tank is 110 and deducting 130 litres from 240 there will be 110 litres of diesel which the tank can very well contain. It is true that the worker did not choose to cross examine the witness at the enquiry. For that reason the evidence need not be accepted in to the face of a glaring error. It is not for a moment suggested that there can be a finding about this on the basis of this one instance. Taking into consideration the whole journey mentioned in Exs. M3 and M3(a) the total distance covered as per Exs. M3 and M3(a) is 2043 kms. Similarly M9 starts with its journey from Calicut on 9-11-1965 and ends the journey on 16-1-1965 at Calicut. But the total distance taken into consideration in Ex. M9 is only 1893 kms. But they have taken into consideration the entire quantity of oil consumed by the lorry. There may be some cogent reason for reducing this total distance of 2043 kms. to 1893. M1 has not stated anything about this in this Court. The witness at the enquiry also has not stated anything about this. The difference works out at 150 kms. If it is so taken that the lorry had travelled that distance also then it would have consumed 34.1 litres of diesel and there would have been no appreciable difference also. In the absence of any explanation for reduction in the distance these figures once accepted by the management has to be accepted as correct. 14. If it is so taken that the lorry had travelled that distance also then it would have consumed 34.1 litres of diesel and there would have been no appreciable difference also. In the absence of any explanation for reduction in the distance these figures once accepted by the management has to be accepted as correct. 14. An impression was created in the mind of the Enquiry Officer that there was excess quantity of diesel oil and this was based on an error which probably was not noticed by the Enquiry Officer. On these grounds I find that Ex. M9 cannot be accepted, and in view of this the findings of the Enquiry Officer also cannot be justified." 4. I have extracted fairly fully the material portion of the order of the Tribunal, in view of the contentions advanced by the parties. The petitioner's argument was that the Tribunal had exceeded its jurisdiction in interfering with the findings of the domestic enquiry so long as there was no recognized norm for interference, such as victimisation, unfair labour practice, or violation of principles of natural justice. In the absence of these, assessment of evidence was forbidden field for the Tribunal. For the 3rd respondent on the other hand, it was contended that the Tribunal was within its rights, and that it has jurisdiction to decide whether the findings recorded at the domestic enquiry could possibly be supported by the evidence, on record. That it has this power is clear enough from the decisions. The question is, on which side of the line does not case fall? Having regard to the nature of the charge, namely that an inflation had been made showing a greater amount of fuel as having been put into the tank than what was actually purchased, the enquiry was pertinent as to whether the tank at the relevant time shown by the bills could have contained the amount of fuel shown to have been put in by the bills. It was from this point of view that the Tribunal examined the findings at the domestic enquiry. It was this aspect again that was highlighted for examination by this Court on the earlier occasion in Ex. P1 judgment, in the following passage: "The statement M9, it is urged was prepared on the basis of the entries in Exs. M2 and M2(a) which were signed and accepted by the driver. It was this aspect again that was highlighted for examination by this Court on the earlier occasion in Ex. P1 judgment, in the following passage: "The statement M9, it is urged was prepared on the basis of the entries in Exs. M2 and M2(a) which were signed and accepted by the driver. The purpose of Ex. M9 was to show that the driver could not have purchased the amount of diesel oil which he said, he had purchased, Ex. M9 was intended to highlight the falsity of the driver's case by showing that the tank of the vehicle could not have taken in the volume of diesel oil said to have been purchased. The discrepancy in the distance as mentioned in Ex. M9 on the one hand and Exs. M3 and M3(a) on the other in relation to the second trip is said to arise because on the statement in Ex. M3 that the distance from Ernakulam to Trivandrum via. Kottayam is 190 miles whereas it is only 146 miles and this is a fact which can be taken judicial notice of. On the basis of these submissions, counsel has contended that the Tribunal has exceeded its jurisdiction in interfering with the findings entered at the time of the domestic enquiry. Ex. M9, it is urged, was relevant material on which the Enquiry Officer could rely. The Tribunal, it is contended, had no jurisdiction to interfere with that finding because the finding is not arbitrary or perverse." 5. But I think the Tribunal has exceeded the limits of its jurisdiction. Whether Exs. M2, M2(a), M3 and M3(a) should be accepted in preference to Ex. M9, was certainly a matter of appreciation of evidence which was essentially the province of the domestic enquiry, and which was forbidden field for the Tribunal. The latter could have examined whether, on the facts and evidence accepted at the enquiry, the conclusion could possibly be come to at all, or whether the finding was perverse. But the Tribunal in this case has not done any such thing. It trespassed into the region of evidence. 6. Counsel for the 3rd respondent raised the contention that at the time the matter was reheard by the Tribunal, in pursuance of this Court's direction in Ex. P1 judgment, the Industrial Disputes Act had been amended by Act 45 of 1971 with effect from 28-12-1971. It trespassed into the region of evidence. 6. Counsel for the 3rd respondent raised the contention that at the time the matter was reheard by the Tribunal, in pursuance of this Court's direction in Ex. P1 judgment, the Industrial Disputes Act had been amended by Act 45 of 1971 with effect from 28-12-1971. The amendment interalia introduced a new section, S.11A which reads: "11A. Powers of Labour Courts, Tribunals, and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely on the materials on record and shall not take any fresh evidence in relation to the matter." It was said that the new section had retrospective operation to pending adjudications and that as Ex. P2 award was passed only on 31-1-1972 the same was governed by the provisions of the new Section. Under the amended section if the Tribunal was satisfied that the order of discharge or dismissal is not justified, it had power to set aside the order and direct reinstatement and the said power was unhampered by any limitations such as had been laid down by the judicial decisions in regard to powers of interference by Tribunals with the findings recorded at the domestic enquiry. Retrospective operation was claimed for the newly introduced S.11A, first on account of the use of the expression "has been", which, it was said, would take in even references made in the past, but pending adjudication at the time the new section became binding; and secondly because the amendment introduced by S.11A was procedural in character. 7. Neither of these contentions appeals to me. As pointed out in Re. 7. Neither of these contentions appeals to me. As pointed out in Re. Athlumney v. Wilson (1898 (2) QB 547) the expression "has been" is quite frequently used in drafting statutes. Wright J. expressed himself thus: "Then is the section so expressed as to be plainly retrospective? No doubt the words "where a debt has been proved under the principal Act" are capable of such a meaning. But this form of words is often used to refer, not to a past time which preceded the enactment, but to a time which is made past by anticipation a time which will have become a past time only when the event occurs on which the statute is to operate. In former times draftmen would have used the words "where a debt shall have been proved", but the modern Acts the past tense is frequently used where no retrospective operation can be intended. In Moon v. Durden (2 Ex. 22) even the phrase last mentioned was held not retrospective. It seems to me that the case for the trustee cannot be put higher than this that either construction is possible; but if so, the authorities to which I have referred show that retrospective force ought not to be given to the section". The principle of construction was stated earlier by the learned Judge thus: "Perhaps no rule of construction is more firmly established than this that a retrospective operation is not to be given a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only". Following the above principle I think it can at best only be said that the words "a reference has been made" are dubious in their meaning. They are capable of meaning, references made in the past and pending adjudication on the date of the amendment. They are equally capable of taking in only reference made subsequent to the amendment. In such circumstances, S.11A cannot be held to be retrospective. Nor do I think that the amendment introduced by S.11A is not purely procedural in character. They are capable of meaning, references made in the past and pending adjudication on the date of the amendment. They are equally capable of taking in only reference made subsequent to the amendment. In such circumstances, S.11A cannot be held to be retrospective. Nor do I think that the amendment introduced by S.11A is not purely procedural in character. Prior to the amendment, the power of interference by the Industrial Tribunal with the findings recorded at the domestic enquiry had to conform to certain well recognised norms and principles. The effect of the amendment is that if the Tribunal is satisfied that the order of discharge or dismissal was not justified, it has power to set aside the same. The amendment is not of a procedural nature. In Keshavlal Jethalal Singh v. Mohanlal Bhagwandas ( AIR 1968 SC 1336 ), a revision under S.115 of the Civil Procedure Code had been filed against the decision of the Appellate Authority, under S.29(2) of the Bombay Rents Hotel and Lodging House Rate Control Act 57 of 1947, which, at that time, did not contain a provision for any further appeal or revision. Pending the revision under S.115, S.29(2) was amended, giving the High Court a power, for the purpose of satisfying itself that the decision was according to law, to call for the case and pass such order as it deems fit. It was contended that the amendment was procedural in character and would affect the revision which had been filed and was pending. The contention was repelled thus: "But when the revision application was entertained under S.115 of the Code of Civil Procedure, the High Court assumed to itself a limited jurisdiction conferred by that section, and in the absence of any express provision made in the Amending Act, the jurisdiction conferred by that section could not be extended. The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure. The order of the appellate court, subject to scrutiny by the High Court within the limited field permitted by S.115 of the Civil Procedure Code, was final. The question whether the High Court could in exercise of its jurisdiction set aside, modify or alter the decision of the appellate court was not a matter of procedure. The order of the appellate court, subject to scrutiny by the High Court within the limited field permitted by S.115 of the Civil Procedure Code, was final. In conferring upon the High Court a wider jurisdiction for the purpose of determining whether the decision of the appellate court was according to law, the Legislature did not attempt to legislate in the matter of procedure. The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided." 8. As the Industrial Tribunal exceeded its jurisdiction in interfering with order of dismissal and as the amended S.11A is not applicable to the case, I allow this writ petition and quash Ex. P2. There will be no order as to costs.