The employer is duty bound to recognize the workmen whose names have been forwarded by the concerned union under sub-rule (1) to be protected workmen unless the total number of such office bearers forwarded by the concerned union exceeds the maximum number of protected workmen admissible for the establishment under Section 33 (4) of the Industrial Disputes Act.

( 1 ) IS writ petition has been filed by the employer challenging the validity and/or legality of the order passed by the learned tribunal in respect of the workman who was considered by the learned Tribunal as protected workman. By the said impugned order, learned Judge of the Tribunal also held that the employer is guilty of doing unfair labour practice within the meaning of the 5th schedule of the Industrial Disputes Act for which the employer can be penalised under the provisions of the Industrial Disputes Act.

( 2 ) THE brief facts material for this petition are mentioned hereinafter: The Government of west Bengal (Labour Department) referred one industrial dispute for adjudication by the First industrial Tribunal vide Order No. 1648-IR dated december 15, 1998 under Section 10 of the industrial Disputes Act concerning the workmen including the respondent No. 2 herein. The said reference is still pending for adjudication. During pendency of the said reference, the Statesman limited dismissed the respondent No. 2, Sri arani Mukhopadhyay along with one fellow employee, namely, Sri Santosh Kumar Das. The said Sri Arani Mukhopadhyay is the vice-President of the Statesman Clerical Staff union whereas the said Sri Santosh Kumar Das is the President of the said Union.

( 3 ) THE employer company filed an application under Section 33 (2) (b) of the I. D. Act before the Tribunal for approval of the dismissal order in respect of the respondent no. 2 herein. The said application filed by the employer company was dismissed by the learned Judge, First Industrial Tribunal, West bengal. While dismissing the said application of the petitioner company, the learned Judge of the Tribunal held that the respondent No. 2 herein is a protected workman within the meaning of the Industrial Disputes Act and rules framed thereunder and as such prior approval of the Tribunal was required to be obtained under Section 33 (3) of the Industrial disputes Act and no order of dismissal can be passed without obtaining such prior approval.

( 4 ) IT has been urged on behalf of the statesman Limited, the employer of the respondent No. 2 that the concerned workman namely, the respondent No. 2 herein is not a protected workman within the meaning of the industrial Disputes Act, 1947 and as such it cannot be said that the mandatory provision of section 33 (3) (b) of the Industrial Disputes Act was violated at the instance of the petitioner company herein.

( 5 ) BEFORE proceeding further, provision of section 33 of the Industrial Disputes Act and rule 71 of the West Bengal Industrial Disputes rules, 1958 are set out hereunder: "section 33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings.- (1) During pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a labour Court or Tribunal or National tribunal in respect of an industrial dispute, no employer shail- (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencemen