JUDGMENT : Ajit Kumar, J. 1. Heard learned counsel for the parties. 2. By means of present writ petition, the petitioner has challenged the award dated 6th January, 1999 whereby respondents employee has been reinstated with backwages. 3. It has been contended on behalf of the petitioner that during the pendency of present writ petition, respondent has been reinstated and subsequently regularized in service as class IV employee and is presently discharging his duty as such, and, therefore, there remains no more any grievance qua reinstatement of respondent. However, it has been argued that Industrial Tribunal was not justified in awarding 100 per cent backwages without recording any finding to the effect that respondent was not gainfully employed during period he was not in service i.e. from the year 1987 to the year 1999. 4. He has also drawn attention of the Court towards last paragraph of the order in which it has been stated that respondent workman was wholly illegally retrenched and as no notice for a month or retrenchment compensation was paid to him, therefore, it was held that it had been in clear violation of Section 6-N of the Industrial Disputes Act, 1947 and thus respondent was held liable to be reinstated in service and at the same time backwages have also been awarded for the period, respondent had been out of petitioner's employment. 5. From perusal of the entire order passed by the Industrial Tribunal, I find that all that has been dealt with is regarding retrenchment of the respondent and the illegality involved in such action at the end of the present petitioner. Nowhere any submission has been recorded of the employee workman that he was not gainfully employed during period he was litigating the matter under reference nor, any finding has come to be returned independently by Tribunal for justifying 100 per cent backwages. 6. Learned counsel for the petitioner has also relied upon the judgment of the Apex Court in the case of P.V.K. Distillery Limited v. Mahendra Ram, (2009) 5 SCC 705 and Reetu Marbles v. Prabhakant Shukla, (2010) 2 SCC 70 . 7. In the case of P.V.K. Distillery (supra) the Apex Court has held that if the employee has not contributed in the establishment to its productivity, the Tribunal/Labour Court should not award 100 per cent backwages. 7. In the case of P.V.K. Distillery (supra) the Apex Court has held that if the employee has not contributed in the establishment to its productivity, the Tribunal/Labour Court should not award 100 per cent backwages. He has placed reliance upon paragraph 12 and 18 of the judgment which runs as under: "10. The only question which requires to be considered by us in this appeal is, whether the Labour Court was justified in awarding full back wages, while directing the employer to re-instate the workman in service 18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched." 8. Thus, according to learned counsel for the petitioner, legal principle enunciated in the said judgment is fully attracted in the present case particularly in a case where no such plea is taken by the respondent workman in the entire pleadings by the labour Court that he was gainfully employed. 9. In so far as judgment in the case of Reetu Marbles (supra) is concerned, learned counsel for the petitioner has placed reliance upon paragraph 11, 12 and 15 which are reproduced hereunder: "11. The only limited issue to be determined by us, in this appeal, is whether the High Court was justified in granting full back wages to the respondent in spite of the denial thereof by the Labour Court. In our opinion the High Court erred in law in not examining the factual situation. The High Court merely stated that it was not the case of the employer that the workman had been gainfully employed elsewhere. In our opinion the High Court erred in law in not examining the factual situation. The High Court merely stated that it was not the case of the employer that the workman had been gainfully employed elsewhere. Although it noticed the principle that the payment of back wages having a discretionary element involved in it, has to be dealt with in the circumstances of each case and no strait jacket formula can be evolved, yet the award of the Labour Court was modified without any factual basis. 12. In the case of M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others, AIR 1979 SC 75 , it has been held as follows: "Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full backs except to the extent he was gainfully employed during the enforced idleness. That is the normal rule." 15. From the above observations it becomes apparent that payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry." 10. Thus the legal position that emerges out is that it is the workman who claims salary for his being unemployed and so the burden lies upon workman to establish that he was under continued unemployment for the period he was pursuing litigation after his retrenchment. So there has to be specific pleading in the first instance and then tribunal is to apply its mind to such pleadings and then record a definite finding of fact that workman was not gainfully employed to be awarded with hindered per cent backwages. There is obvious reason for that as in its broadest sense the words 'gainful employment' means an employment where employee is receiving steady work and remuneration in lieu thereof from the employer for whom he works. A gainful employment may not be an absolute substitute to the work which the workman was doing at the time of retrenchment both in terms of nature of work and remuneration but certainly substantial enough for survival. A gainful employment may not be an absolute substitute to the work which the workman was doing at the time of retrenchment both in terms of nature of work and remuneration but certainly substantial enough for survival. In such a situation therefore, if employee is able to establish that he was not gainfully employed, the equity demands hindered percent backwages but if employed but not happily and was enough for only to meet both the ends meet, proportionate amount of back wages in terms of percentage may be awarded. 11. The above legal principle if applied to the present case it turns out to be a case of sheer mechanical approach by the labour Court in awarding full back-wages of the petitioner. However, taking pragmatic view of the matter that respondent was wholly illegally retrenched and action of the respondent was not justified and then if, respondents have found his service worth regularization and he has been regularized, meeting the ends of justice and balancing the equity it is hereby held that respondent shall be entitled to 50 per cent backwages only for the period between 1987 to 1999. 12. The order of the labour Court accordingly stands modified to the above extent. 13. Writ petition is allowed in part and is disposed of with the aforesaid observations and directions.