SUBHRO KAMAL MUKHERJEE, J. ( 1 ) THIS is an application under Article 227 of the Constitution of India challenging Order no. 44 dated August 14, 2002 passed by the learned Judge, Seventh Industrial Tribunal, west Bengal in Case No. VIII-71 of 2000. ( 2 ) THE opposite party No. 2 was a godown keeper of the petitioner-company and he was dismissed from his service on 31/10/1994 on the ground of unauthorised absence. The conciliation proceedings having failed, an industrial dispute has been referred to the seventh Industrial Tribunal for adjudication. ( 3 ) THE workman filed an application under section 15 (2) (b) of the Industrial Disputes Act, 1947 as amended by the West Bengal Act 33 of 1986. The management raised objection, inter alia, on the ground that the workman was running 'atta Ka Chaki' at Jhargram and as such he was not entitled to interim relief as he has been gainfully employed. ( 4 ) THE learned Judge in the Tribunal concerned inter alia held that the management has failed to substantiate the allegation that the workman concerned has been running a mill and that the management has failed to produce any document to substantiate said allegation. The Tribunal, therefore, held that there has been a prima facie case in favour of the workman and as such the workman has been entitled to interim relief at the rate of seventy-five per centum of his last wages from the date of reference month till the disposal of the industrial dispute. ( 5 ) BEING aggrieved the management has come up with this application under Article 227 of the Constitution of India. ( 6 ) MR. Dilip Sengupta, learned advocate, appearing for the management, primarily argued two points. Firstly he has argued that as the workman has been gainfully employed, he is not entitled to interim relief. Secondly, it was argued that under the provisions of Section 15 (2) (b) of the Industrial Disputes Act, 1947 the workman has been entitled to subsistence allowance equivalent to the subsistence allowance admissible under the West Bengal payment of Subsistence Allowance Act, 1969 and as such the Tribunal concerned exceeded its jurisdiction in directing payment of subsistence allowance to the workman at the rate of seventy-five per centum of his last wages from the date of reference. ( 7 ) THE scope and purport of Section 15 (2) (b) of the Industrial Disputes Act, 1947 came into consideration before a Full Bench of this Court in B. G. Sampat v. State of West bengal and Ors. , reported in 2000-I-LLJ-565. The Full Bench held that the workman was entitled to interim relief from the date of reference and not prior thereto. The provisions of the West Bengal Payment of Subsistence allowance Act, 1969 prohibited such grant of subsistence allowance in the event the workman has been gainfully employed and for the purpose of computation of the quantum of interim relief, the said factor would be relevant. Once an interim relief has been prayed for, the tribunal has to apply its mind as regard existence of a prima facie case. It is, therefore obligatory on the part of the Tribunal, prima facie, to consider the merit of the cases of the respective parties as also the nature of dispute upon taking into consideration the relevant materials. ( 8 ) IN the case in hand, the Tribunal concerned found, as findings of fact, that the workman had a prima facie case in his favour and the management had failed to substantiate the allegation that the workman concerned has been gainfully employed. ( 9 ) IN my view, such findings of facts are not open to challenge in an application under article 227 of the Constitution of India. ( 10 ) HOWEVER, I find substance in the submission of Mr. Sengupta that the Tribunal concerned exceeded his jurisdiction in directing payment of subsistence allowance to the workman concerned at the rate of seventy-five per centum of his last wages from the date of reference till present industrial dispute case is decided. ( 11 ) IN order to appreciate such contentions of the management it is necessary to note the provisions of Section 15 of the Industrial disputes Act, 1947, as amended by the West bengal Act 33 of 1986 and Section 3 of the West bengal Payment of Subsistence Allowance Act, 1969. Under proviso to sub-section (2) (b) of section 15 of the said Act of 1947, as applicable in the State of West Bengal the quantum of interim relief should be equivalent to the subsistence allowance admissible under West bengal Payment of Subsistence Allowance Act, 1969. Under proviso to sub-section (2) (b) of section 15 of the said Act of 1947, as applicable in the State of West Bengal the quantum of interim relief should be equivalent to the subsistence allowance admissible under West bengal Payment of Subsistence Allowance Act, 1969. Under sub-section (1) of Section 3 of the west Bengal Payment of Subsistence allowance Act, 1969, an employee is entitled to receive payment from his employer as subsistence allowance an amount equal to fifty per centum of his wages, which the employee was drawing immediately before his suspension. The first proviso to sub-section (1)of Section 3 of the said Act of 1969 provides that where the said period of suspension exceeds ninety days, the amount of subsistence allowance shall be increased after the expiry of ninety days to seventy-five per centum of the wages, which the employee was drawing immediately before such suspension. ( 12 ) IN B. G. Sampat (supra) the Full Bench held that the workman was entitled to subsistence allowance from the date of reference and not, prior thereto. Therefore, the workman concerned was entitled to payment at the rate of fifty per cent of his last wages for ninety days from the date of reference, and thereafter, at the rate of seventy-five per centum of his last wages till the disposal of the industrial case. ( 13 ) THEREFORE, the order impugned is modified to the extent that the opposite party no. 2 will be entitled to interim relief at the rate of fifty per centum of his last wages of Rs. 1097/- (Rupees one thousand ninety seven)only from the date of reference for ninety days and, thereafter, he will be entitled to interim relief at the rate of seventy-five per centum of his said last wages till the disposal of the present industrial dispute. ( 14 ) THE application under Article 227 of the Constitution of India is, thus allowed in part without, however, any order as to costs. ( 15 ) XEROX certified copy of this order, if applied for, is to be supplied expeditiously.