Judgment : 1. The petitioner – Maharashtra State Road Transport Corporation (for short “M.S.R.T.C.) has challenged the order dated 12/6/2001 of the Member of Industrial Court, Nagpur whereby the Industrial Court has reinstated the complainant with continuity of service along with 50 % back wages. 2. The respondent who is a Driver with the petitioner made leave application on 19/2/1992 addressed to the Depot Manager and in said leave application he used the threatening language. The charge sheet was issued on 9/3/1992 leveling the charges under clause 26 and 28 of the Disciplinary and Appeal Procedure. After inquiry he was held guilty and was dismissed on 26/12/1992. Against said order the delinquent – respondent filed ULPA Complaint No. 116/1993 and Labour Court in its order dated 11/1/1999 allowed the complaint and declared that the dismissal of the complainant is an unfair labour practice within the meaning of Item (9) of the Schedule 4 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 and reinstated the complainant with payment of full back wages and continuity in service w.e.f. 22/12/1992. The said order was challenged before the Industrial Court. The Industrial Court though held him guilty for the misconduct for the use of intemperate language observed that the dismissal was disproportionate and also held that the reinstatement of the respondent with continuity of service with full back wages was not justified. Therefore, it cut down the back wages up to 50 %. Hence this writ petition. 3. Shri Charpe, learned counsel for respondent, argued that the order of reinstatement of the Industrial Court is illegal. He has submitted that the language used was of a serious nature and it was a grave misconduct. Under such circumstances, it is not open for the Court to reinstate the delinquent. In support of his submissions he has relied on citation Vilas Vithalrao Takale V/s. Jaya-Hind Industries Ltd. reported in 2008 (5) Mh.L.J . 216. 4. The respondent has given threats in his leave application and Industrial Court has rightly held that misconduct was proved. However, degree of misconduct is measured on the basis of seriousness and the nature of the threats given. In the case of Vilas Thakre V/s. Jaya-Hind Industries Ltd. there was a serious altercation between delinquent and his officer however, in the present case employee has mentioned only one objectionable sentence in his leave application. However, degree of misconduct is measured on the basis of seriousness and the nature of the threats given. In the case of Vilas Thakre V/s. Jaya-Hind Industries Ltd. there was a serious altercation between delinquent and his officer however, in the present case employee has mentioned only one objectionable sentence in his leave application. Therefore, the present case cannot be covered under the ratio laid down in the case of Jaya-Hind Industries Ltd. Thus, order of reinstatement with continuity of service is just and correct. 5. On the point of back wages Shri Khan, learned counsel for delinquent – respondent, has submitted that though as per the ratio laid down in the case of U.P. State Brassware Corp. Ltd. and Anr. V/s. Udai Narain Pandey reported in 2006 1 CLR 39 it is necessary for the delinquent to plead and prove the fact of his unemployment during the period of dismissal. The said judgment was not holding field when this case of 19921993 has taken place. At the relevant time the law laid down by the Supreme Court in Hindustan Tin Works Ltd. V/s. Employees (1979) 2 S.C.C. 80 was applicable. 6. On the issue of back wages the judgment of the Supreme Court in the case of J.K. Syntheticks Ltd. V/s. K.P. Agrawal and another reported in 2007 (2) S.C.C. 433 and U.P. State Brassware Corp. Ltd. and Anr., cited supra, are relied on. The law laid down by the Supreme Court comes in operation and is applicable retrospectively unless it is specifically mentioned. Acceptance of the statement of learned counsel Shri Khan will amount to apply the law of the Supreme Court prospectively. Doctrine of ‘prospective overruling’ cannot be attracted here in view of Article 141 of the Constitution of India. However, the respondent no.1 has filed an affidavit wherein it is mentioned that from 26/12/1992 till he was reinstated he was not gainfully employed. Therefore, this statement made in the affidavit is substituted as a pleading and also a proof. Doctrine of ‘prospective overruling’ cannot be attracted here in view of Article 141 of the Constitution of India. However, the respondent no.1 has filed an affidavit wherein it is mentioned that from 26/12/1992 till he was reinstated he was not gainfully employed. Therefore, this statement made in the affidavit is substituted as a pleading and also a proof. The fact that a person is not employed is a matter of negative proof and if it is disputed then only a person can tender evidence accordingly however, in the present case such issue was not raised by either of the parties before either the Labour Court or before the Industrial Court and therefore, the statement made by the respondent no.1 on oath in the affidavit is sufficient and is accepted. Shri Charpe, learned counsel for petitioner, on affidavit argued that this factual aspect is to be tested and therefore, this matter be remanded to the Labour Court. The charges sheet was issued to the respondent in the year 1992. This matter is 18 years old. Under such circumstances, I do not find it just or equitable to remand the matter for cross examination of the respondent. Moreover the petitioners have not contravened these pleadings of non-employment by filing a counter affidavit. Therefore, in view of facts and circumstances of the case, petition is dismissed and the judgment of the Industrial Court, Nagpur dated 12/6/2001 is not disturbed and maintained. No order as to costs.