ORDER : 1. The petitioner has approached this Court for quashing the Award dated 19.06.14 passed by the Presiding Officer, C.G.I.T. No.2, Dhanbad in Reference No.20 of 2004 whereby and whereunder he has been pleased to answer the Award in favour of the respondent-workman holding therein that the workman concerned is entitled to reinstatement in his service with 50% back wages and its other benefits. 2. As per factual matrix, the workman Nirmal Mahto, P. No.221136 was employed in Bhelatand Colliery as a Miner. He was appointed by the petitioner-Company on the basis that his land measuring a total area of 2.03 acres of Mouza Sijua under Khata No.38 was acquired by the Company and physical possession of the same was taken by the Company. The Company started digging foundation for Sand Bunker and when considerable progress was made, the workman Nirmal Mahto forcefully stopped the Company's work at Plot No. 531 at Bhelatand Mouza and also caused damage to the work in progress. The workman Nirmal Mahto was accordingly charge-sheeted vide charge-sheet dated 13.06.2002 and was asked to furnish his explanation. The workman submitted his explanation vide his letter dated 20.06.2002 addressed to the Manager, Bhelatand Colliery of the Company. The reply submitted by the workman was not found satisfactory and accordingly an enquiry committee was constituted to enquire into the charges levelled against the workman. Finding the comments of workman not tenable, the order of dismissal was passed on 22.10.2002. The disputebeing raised by the unrecognized Union, conciliation proceeding was initiated and on failure of the conciliation proceeding, the matter was sent to the Central Government and the Central Government vide their order No. L-20012/182/2003-I.R. (C-l) dated 14.12.2003 referred the following dispute to the Central Government Industrial Tribunal No.2, Dhanbad for adjudication: "Whether the action of the Management of Bhelatand Colliery of M/s Tisco in dismissing Sri Nirmal Mahto w.e.f. 25.10.2002 from the service of the Company is fair and justified ? if not to what relief is the concerned workman entitled ? That on the receipt of said reference by the Central Government Industrial Tribunal (in short C.G.I.T.) reference case No. 20 of 2004 was registered. 3. Upon receipt of the notification, both the parties were noticed and the parties appeared and filed their respective pleadings and the documents in support of their case. That on the receipt of said reference by the Central Government Industrial Tribunal (in short C.G.I.T.) reference case No. 20 of 2004 was registered. 3. Upon receipt of the notification, both the parties were noticed and the parties appeared and filed their respective pleadings and the documents in support of their case. The learned Central Government Industrial Tribunal No.2, Dhanbad after hearing the parties and perusing the evidences and documents brought on record, vide its Award dated 19.06.2014 answered the reference in favour of the respondent-workman holding therein that: "Considering all the aforesaid factors of the reference, it is hereby responded and accordingly awarded in the reference that the action of Management of Bhelatand Colliery of M/s Tisco in dismissing Sri Nirmal Mahato w.e.f 25.10.2002 from the services of Company is quite unfair and unjustified. Hence the workman concerned is entitled to reinstatement in his service with 50% back wages and its other benefits." 4. Aggrieved by the Award dated 19.062014, the petitioner-Company has knocked the door of this Court. 5. Mr. G.M.Mishra, learned Counsel for the petitioner-Management assailing the impugned order submits that the impugned award is self-contradictory inasmuch as there is no material on the record to suggest that the action of stoppage of the company's work and causing damage to the work in progress could be said to be a minor misconduct. The learned Tribunal on the one hand has held that the act of misconduct has been established although described the same as minor misconduct, then the question of describing the act of prevention/stoppage of construction activities cannot be said to be "alleged preventive action." The domestic enquiry has been found to be fair and proper and the misconduct has also been proved, hence the Tribunal has exceeded its jurisdiction by interfering with the order of punishment which is not held to be shockingly disproportionate warranting interference with the order of punishment. The impugned award is thus liable to be set aside on this score alone. The law has been firmly settled that even when the order of dismissal or discharge is held to be not valid there is no question of automatic entitlement to reinstatement and or back wages. It is well settled law that in order to claim back wages the workman concerned has to specifically plead that during the interregnum period he was not gainfully employed. It is well settled law that in order to claim back wages the workman concerned has to specifically plead that during the interregnum period he was not gainfully employed. There is nothing in the pleading on behalf of the workman and or even otherwise to discharge the initial onus on the part of the workman that he was not gainfully employed as such the question of payment of any back wages much less 50% back wages is totally against the established and declared law by the Apex Court. 6. To buttress his argument, learned Counsel for the petitioner places heavy reliance on the following judgments: i. (2009) 15 SCC 327 ii. (2013) 10 SCC 324 7. Per contra no counter-affidavit has been filed. However, learned Counsel for the respondent submits that the workman was dismissed as per the letter dated 22/23.10.2002 w.e.f. 25.10.2000 based on the perverse and prejudiced enquiry report. The enquiry was quite illegal as no copy of enquiry proceeding or statement along with second show-cause was supplied to him, resulting him of deprivation of proper opportunity for a complete reply. The workman was taken into service in place of the Land of Sijua Khata No. 38, but the plot No. 531 of Khata No.2 of Bhelatand in which he has no share belongs to his brother Nilkanth Mahato. If the plot of land belonged to the company why Management un-succeeded in building its stowing plant, but it had to dismantle/destroy the quarters, and then built the plant. The action of the Management in dismissing the workman is not justified. Rightly the learned Tribunal has held that the workman is entitled to reinstatement in service with full back wages and all due benefits. 8. Be that as it may, on a consideration of the facts and circumstances of the case as also the submissions made across the bar, this Court is of the considered opinion that admittedly, a person who has not worked for a particular period, is not entitled for the remuneration/salary of the said period. No straight jacket formula can be evolved for coming to a conclusion as to whether an employee is entitled for back wages or not. Even discretion of the Court is based on the rules and law laid down on this point. No straight jacket formula can be evolved for coming to a conclusion as to whether an employee is entitled for back wages or not. Even discretion of the Court is based on the rules and law laid down on this point. It is trite law that in the absence of a pleading and further proof to the effect that the workman was not gainfully employed during the period of his unemployment at the first stage before the Labour Court or Tribunal no back wages can be paid. The said issue fell for consideration before the Hon'ble Apex Court in case of " M.L. SINGLA VS. PUNJAB NATIONAL BANK AND ANOTHER, reported in (2018) 18 SCC 21 The relevant paras of the said judgment is reproduced here-in-below:- "28. Fourth error was award of 50% back wages to the appellant. While awarding 50% back wages the Labour Court did not examine the question as to whether the Appellant had pleaded and proved with the aid of evidence that he was not gainfully employed after his dismissal from service. "29. In order to claim back wages, it is necessary for the Appellant to plead and prove that he was not gainfully employed after his dismissal with the aid of evidence. Respondent Bank too was entitled to adduce evidence to prove otherwise." 9. Further the Hon'ble Apex Court in case of "Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D.E.D.) & Ors.", reported in (2013) 10 SCC 324 has held as under:- "38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages it required to either plead or at least make an statement before the adjudicating authority or the court of first instance that he or she was not gainfully employed or was employed on lesser wages. If employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service." 10. From perusal of the records, it also appears that even cardinal principle of natural justice was not adhered to. From perusal of the records, it also appears that even cardinal principle of natural justice was not adhered to. The constitutional provisions as envisaged under Article 311 was not taken into consideration inasmuch as, no second show-cause notice along with copy of the enquiry report was served to the petitioner before passing of the order of dismissal. It amounts to serious folly in the departmental proceeding. However, since much time has elapsed and in view of the fact that employee has already been reinstated into the service, I am not inclined to interfere. However, the order of the Tribunal is modified to the extent that instead of awarding 50% back wages, respondent-workman is entitled for only 25% back wages in view of the fact that employee did not produce any documents regarding his gainful employment. 11. For the aforesaid facts and reasons, the writ petition is devoid of any merit and the same is hereby dismissed.