ORDER C.K. Prasad, J. 1. Respondent No. 3 was initially appointed as helper at the construction site of the Petitioner-Company i.e., the Steel Authority of India Ltd., on 02-04-1959. He was retrenched on 15-02-1961. Thereafter he was appointed as Fitter Grade-II on work-charge establishment w.e.f. 07-05-1962. According to the petitioner, at the initial stage of his employment, he declared his age as 24 years as on 01-07-1959. This was recorded in the employment index card, which was duly signed by him. Accordingly, his date of birth was found to be 01-07-1935 and taking into consideration the aforesaid date of birth, respondent No. 3 was to superannuate on attaining the age of 58 years on 30th of June, 1993. According to the petitioner, respondent No. 3 two years before his actual date of retirement i.e., 30-6-1993 filed representation in the years 1991 and 1992 requesting the petitioner to correct his date of birth as 01-01-1945. Prayer of respondent No. 3 was turned down on the ground that as the request was made for change of date of birth during the last 5 years of service, same cannot be acceded to. Accordingly, decision was taken to retire the petitioner on attaining the age of 58 years on 30-06-1993. 2. Respondent No. 3 aggrieved by the same preferred an application before the Labour Court on 23-12-1992 under Section 31 (3) of the M.P. Industrial Relations Act (hereinafter referred to as the 'Act') interalia praying for declaration of his date of birth as 1-1-1945. Respondent No. 3 also filed an application for stay of the order of superannuation whereby he was communicated that he shall retire on attaining the age of 58 years on 30th of June, 1993. Labour Court by interim order dated 08-04-1993 directed the petitioner not to retire respondent No. 3 on 30th of June, 1993. Aggrieved by the interim order, petitioner preferred a miscellaneous application before the Industrial Court, but the same was rejected by the Industrial Court by its order dated 30th of Aug. 1993. While rejecting the application of petitioner against the interim order, Industrial Court directed the Labour Court to finally decide the matter within 4 months. However, the Labour Court did not decide the matter within the time stipulated by the Industrial Court and ultimately by order dated 16-10-1997 application filed by respondent No. 3 was finally rejected. 1993. While rejecting the application of petitioner against the interim order, Industrial Court directed the Labour Court to finally decide the matter within 4 months. However, the Labour Court did not decide the matter within the time stipulated by the Industrial Court and ultimately by order dated 16-10-1997 application filed by respondent No. 3 was finally rejected. Labour Court upheld the date of birth as recorded by the petitioner i.e., 01-07-1935 as correct. Ultimately, respondent No. 3 was relieved from service of the petitioner w.e.f. 22-10-1997. 3. Respondent No. 3 aggrieved by the order dated 16-10-1997 passed by the Labour Court filed appeal before the Industrial Court. Industrial Court by its order dated 30-11-1998, neither accepted the date of birth as pleaded by the petitioner i.e., 01-07-1935 nor the date of birth claimed by respondent No. 3 i.e., 01-01-1945 and by order dated 30-11-1998 it directed the petitioner to treat the date of birth of respondent No. 3 as 13-02-1941. By this writ petition filed under Articles 226 & 227 of the Constitution of India, petitioner prays for quashing of the aforesaid order of the Industrial Court. 4. Mr. H.N. Vyas appearing on behalf of the petitioner contends that respondent No. 3 having come out with a specific plea that his date of birth is 01-01-1945 and the same having not been accepted, Industrial Court ought not to have made out a third case which was neither pleaded by the petitioner nor by respondent No. 3 that the later's date of birth be treated as 13-2-1941. He further submits that the Industrial Court recorded the finding that the date of birth of respondent No. 3 is 13-02-1941 on surmises and conjectures. 5. Mr. Sujay Paul, however, appearing on behalf of respondent No. 3 submits that the Industrial Court on appreciation of evidence produced before it, has recorded the finding and this Court in exercise of its writ jurisdiction cannot reappraise the evidence and substitute the finding recorded by the Industrial Court. 6. Having appreciated the rival submission, I do not find any difficulty in accepting the broad submission of Shri Paul that this Court while exercising its writ jurisdiction cannot act as a Court of appeal and substitute the finding of the Industrial Court by its own finding after reappraising the evidence as a Court of appeal. 6. Having appreciated the rival submission, I do not find any difficulty in accepting the broad submission of Shri Paul that this Court while exercising its writ jurisdiction cannot act as a Court of appeal and substitute the finding of the Industrial Court by its own finding after reappraising the evidence as a Court of appeal. However, it is equally true that if the sub-ordinate Courts or Tribunals record finding which is perverse, nothing prevents this Court from setting aside the said finding and record its own finding. 7. In the background of this settled legal position, I proceed to examine that facts of the present case. Column No. 10 of the employment index card of respondent No. 3 indicates "date of birth of the employee or the age on 01-07-1959". In the said column, the age of respondent No. 3 has been shown to be 24 years. Aforesaid document has been signed by respondent No. 3 himself on 13-02-1965. Date of appointment of respondent No. 3, according to the employment index card is 07-05-1964. Industrial Court has found that the declaration made by respondent No. 3 that his age is 24 years, has to be reckoned on the date of declaration made by respondent No. 3 i.e., 13-02-1965 and accordingly, it found the date of birth of the petitioner to be 13-02-1941. While doing so, it has referred to the evidence of one of the witnesses of petitioner i.e., Shri R.N. Tiwari who in his cross-examination has stated that when a person is employed, he is asked to give his present age and respondent No. 3 must have been asked to do the same. Accordingly, the Industrial Court concluded that the date of birth of respondent No. 3 is 13-02-1941. 8. I am of the opinion that the finding recorded by the Industrial Court suffers from the vice of surmises and conjectures. In the employment index card of respondent No. 3, it has been specifically stated that the date of birth of the employee or age on 01-07-1959 was 24 years. Aforesaid document has been signed by respondent No. 3 himself. He accepted the same for long years and for the first time in the years 1991 and 1992 i.e., two years before his actual date of his retirement, he made representation for change of his date of birth. Aforesaid document has been signed by respondent No. 3 himself. He accepted the same for long years and for the first time in the years 1991 and 1992 i.e., two years before his actual date of his retirement, he made representation for change of his date of birth. In the face of a specific answer of respondent No. 3 that his age was 24 years, on 01-07-1959 evidence of the witness of the petitioner that age from an employee is ascertained at the time when he is taken in employment, is of no consequence. It is not the case of respondent No. 3 that the entries made in employment index card has been interpolated. In a situation like this when there is material of unimpeachable character showing the age of respondent No. 3 as 24 years on 01-07-1959, what is being followed in case of other employees to ascertain the date of birth is absolutely insignificant. I am of the opinion that the conclusion arrived at by the Industrial Court that the date of birth of respondent No. 3 is 13-02-1941 which was neither the case of petitioner nor that of respondent No. 3, suffers from vice of perversity and is based on surmises and conjectures. This deserves to be set aside and is hereby set aside. 9. Mr. Vyas points out that respondent No. 3 continued in service beyond the age of 58 years in view of the interim order passed by the Labour Court and could be finally relieved from the service with effect from 22-10-1997 although he ought to have been superannuated from service on 30th of June, 1993. He further projects that after the order of the Industrial Court in view of the interim order of this Court dated 16-04-1999 petitioner has paid wages to respondent No. 3 in terms of Section 65 (3) of the M.P. Industrial Relations Act. He submits that all the amount received by respondent No. 3 after the due date of his superannuation, deserves to be deducted from the terminal benefits of respondent No. 3 and petitioner be given liberty to get the refund of the said amount from him. In support of his submission, he has placed reliance on a judgment of the Supreme Court in case of State of U.P. v. Harendra Kunwar 1995 LAB. I.C. 2471. In support of his submission, he has placed reliance on a judgment of the Supreme Court in case of State of U.P. v. Harendra Kunwar 1995 LAB. I.C. 2471. He has drawn my attention to paragraph 3 of the said judgment which reads as follows :-- "We, therefore, allow this appeal and set aside the order of the learned single Judge as well as the Division Bench and remit the matter to the High Court for disposal in accordance with law. We may also make it clear that if the High Court comes to the conclusion that the age of retirement was correctly determined by the State Government as 58 years the High Court will deduct the undeserved benefit which the respondent reaped by continuance in service for two years beyond the age of retirement of 58 years and deduct the salary and allowances from the terminal benefits which the respondent would be entitled to and also make a specific direction in that behalf at the time of fixation of pensionary benefits. It is time that such an action is taken to deter people from questioning the age of retirement or date of birth at belated stages: otherwise that tendency to bring such cases and reap the benefit under interim order will not be controlled. No order as to costs." 10. Mr. Paul appearing on behalf of respondent No. 3, however, submits that the facts of the present case do not entitle the petitioner to get refund of the amount paid to the petitioner after 30-06-1993. In support of his submission, he has placed reliance on a Judgment of the Supreme Court in case of Dena Bank v. Kirti Kumar T. Patel (1999) 2 SCC 106 . 11. Having appreciated the rival submission, in the facts of the present case, I am not inclined to give liberty to the petitioner to get refund of the amount paid to respondent No. 3. Such a prayer in the first instance ought to have been made before the Labour Court. This has not been done. Further no such plea was raised before the Industrial Court in appeal. Other remedy available to the petitioner was to assail the interim order of the Labour Court as affirmed by the Industrial Court which was not availed of. Such a prayer in the first instance ought to have been made before the Labour Court. This has not been done. Further no such plea was raised before the Industrial Court in appeal. Other remedy available to the petitioner was to assail the interim order of the Labour Court as affirmed by the Industrial Court which was not availed of. Taking into circumstances the aforesaid facts, I am not inclined to accede to the prayer of petitioner in this regard. 12. In case of Harvinder Kunwar (supra) the contention of the employee was that he was entitled to continue in service till he attained the age of 60 years and he obtained an interim order for his continuance in service. He remained in service under the interim orders of the High Court, till he attained the age of 60 years. The High Court allowed the petition to be disposed of as infructuous without any adjudication. Appeal preferred by the State against the aforesaid order was also dismissed and then the matter travelled to the Supreme Court and in that, the Supreme Court directed that if the High Court comes to the conclusion that the age of retirement was correctly determined by the State Government as 58 years, the High Court will deduct the undeserved benefit. As stated earlier, in the present case, after dismissal of the application of respondent No. 3 by the Labour Court, petitioner did not agitate this point, before the superior Court. In fact, petitioner has not made such prayer before the Labour Court. It is only after the Industrial Court has partly allowed the appeal of respondent No. 3 that petitioner has raised this plea before this Court for the first time. Hence, the authority relied on is clearly distinguishable. 13. In the result, writ petition is allowed. Impugned order of the Industrial Court dated 30-11-1998 (Annexure P-1) is quashed. In the facts and circumstances of the case, there shall be no order as to costs.