JUDGMENT A.H.Joshi, J. 1. This is an appeal by the employees, who are the original complainants. They had filed the complaint before the Labour Court, under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (Hereinafter referred to as "MRTU and PULP Act"). 2. The facts, which the appellants had narrated in the complaint are summarized as follows: (a) The complainant no. 1 was appointed on 02.07.1989, whereas complainant no. 2 was appointed on 01.01.1989. (b) Their services were terminated by the employer, by oral order on 17.09.2001. (c) Their contention and claim under section 28 of the MRTU and PULP Act was:(i) Termination was effected without following mandatory requirement of Section 25(F) and (G) of the Industrial Disputes Act, 1947, and Section 4 of the Industrial Employment (Standing Orders) Act, 1946. (ii) Termination was on account of reasons which were not truthful and without notice, notice pay and payment of retrenchment compensation. (iii) Seniority of workmen was not prepared and juniors were retained in the employment. 3. The complaint was opposed by the respondents by filing written statement, contending that:(a) The fact that the complainants were employed and were terminated was admitted. (b) A specific plea was raised that complainants had not completed 240 days of employment during any of the years preceding the termination. 4. The complaint proceeded on the basis of affidavit of the complainant and some documents. Oral or documentary evidence whatsoever was not tendered by the employer. 5. The learned Judge, Labour Court, has discussed the aspect of continuous services in paragraph No. 9 of the Judgment. Learned Judge found that the evidence brought by the complainant in support of the complaint was not shattered in the crossexamination. Learned Judge of has observed in para No. 10 as follows:" 10. The complainants have filed several documents vide Exhibit U18. Those documents were the xerox copy which were issued by the respondents to them. The document dated 15.04.2002 vide Outward No. 88 shows that the Executive Engineer of the Respondents had issued one confidential letter to the Law o& Labour Welfare Officer, Mumbai in which he contended that during the calender year 1999 to 2000, the complainant had worked for 240 days in a calender year and therefore they are entitled to get protection under the provisions of MRTU and PULP Act 1971. The copy of letter dated 29.02.2008 issued on behalf of the respondents to the complainant Rama Dahiwal shows that the respondents informed to the complainant Rama Dahiwal that the documents sought by him were belongs to the period from 1987 to 1998 and those documents were of 10 to 20 years old and therefore it is not possible for them to furnish the said information. This letter shows that the respondents avoided to furnish the document about the muster roll to the complainants Rama Dahiwal on the reasons that those documents were not available but the record shows that first time in the year 1995 by lodging the writ petition no. 217 of 1995 the complainants had raised their grievance. Therefore it was the bounden duty of the respondents to preserve the documents pertaining to the complainant nos. 1 and 2. In such situation adverse inference can be drawn against the respondents that if those documents would have produced before the Court, then those documents might have gone against the respondents." 6. In the result, the learned Judge of the Labour Court ordered reinstatement of both the complainants with 25% back wages. 7. The employer approached Industrial Court, challenging the judgment of Labour Court, Under Section 44 of the MRTU and PULP Act by filing an application. The challenge can be seen from grounds No. (E) and (F), which reads as follows:"(E) That, the respondents did not prove their case they have completed 240 days in calender year but held that petitioners are engaged with unfair trade practice, hence judgment is bad in law and liable to be set aside. (F) That, the lower Court has also miserably failed to apply judicial mind regarding the documents which have not proved by the respondents all of them were Xerox copies but the lower Court gave the weightage to the documents by holding that the complainants were in service more than 240 days in a calendar year." 8. The Industrial Court heard the Revision Application and the unsuccessful employer approached this Court by filing Writ Petition. 9. Writ Petition No. 2911 of 2011 filed by employer was finally heard at the motion hearing by learned Single Judge. The orders passed by Labour Court and Industrial Court are set aside and complaint is dismissed vide impugned order dated 20th March, 2012, which is challenged in this Appeal. 10. 9. Writ Petition No. 2911 of 2011 filed by employer was finally heard at the motion hearing by learned Single Judge. The orders passed by Labour Court and Industrial Court are set aside and complaint is dismissed vide impugned order dated 20th March, 2012, which is challenged in this Appeal. 10. The learned Single has held against the present appellantsemployees in paragraph No. 3 and 4 of the Judgment as follows:" 3. The contention of the respondents that they were regular casual labours with the petitioners, indeed is negated as per the list produced by the petitioners at page No. 58. The respondents were engaged on Rate list basis. Mr. Bakshi before me, placed measurement book of the relevant year, which shows that the wages paid to the respondents varied from time to time, dependent on the work carried by them on a particular site. 4. Mr. Bakshi has rightly said, if there was termination on 17.01.2001, which was oral termination, according to the respondents, there should have been a prayer in this respect, seeking declaration of said termination to be illegal. I find no such prayer was made and both the Courts erred in not dealing with said oral termination dated 17.1.2001, which the respondents asserted. The orders giving blanket effect to the respondents continuously working for 240 days in a year, has different shades and colours, it cannot provide recourse to assert as of right for getting the work in the department as permanent. Both the orders call for interference. Both the impugned orders are set aside. Writ Petition allowed. Rule made absolute no costs." 11. We have heard parties at length. 12. Learned Advocate for appellants has urged before this Court various points to assail the order passed by learned Single Judge. The grounds urged before us are summarized as follows:(i) Learned Single Judge could have resorted to extraordinary jurisdiction and interfered in concurrent findings, only if it could have been possible to hold that adverse inference drawn by the Labour Court and upheld by the Industrial Court is contrary to law. (ii) Findings that respondents-workmen were engaged on 'Rate List basis' is erroneous, since a factual aspect pleaded by the employer for the first time before the High Court without any foundation in the written statement or any evidence on the record of trial Court or Revisional Court. (ii) Findings that respondents-workmen were engaged on 'Rate List basis' is erroneous, since a factual aspect pleaded by the employer for the first time before the High Court without any foundation in the written statement or any evidence on the record of trial Court or Revisional Court. It was not proved that any employment or establishment of this type exists. Known forms of employment are either on work charge regular / temporary or converted into regular / temporary. (iii) The learned Single Judge was guided by totally erroneous 'notion' about said nature of employment. However fact in relation to existence of such a type of establishment was not proved. Thus whole foundation of the judgment is erroneous. (iv) Evidence of measurement book referred to in para no. 2 of the judgment of the learned single Judge cannot constitute the evidence of employment, its nature, duration etc. (v) The employer was in possession of the documents as to actual days of employment. Those documents could have been brought before the Court, but this was not done. (vi) Moreover, the employer has not come with ground explaining as to how findings recorded by the learned Judge of Labour Court in para No. 10 about adverse inference as well as the admission of employer recorded in official correspondence that workmen had put in more than 240 days of service could be overcome. (vii) The judgment impugned does not contain due and adequate reasons to sustain the load of reversal of concurrent fact finding by two Courts. (viii) It was not disputed that the Industrial Employment Standing order would apply. Therefore, it was and is necessary to read together the provisions of Industrial Disputes Act and Industrial Employment Standing Order and relevant rules. In the result it was necessary for the employer to prove that seniority list of workmen should have been prepared on the principle of last come first go and followed. (ix) Any finding to seniority and last come first go in this regard is not recorded. Due to failure to advert to this aspect the judgment and order of learned Single Judge is erroneous. (x) Learned Single Judge has exceeded jurisdiction by interfering in fact finding without a ground being made out. Thus on facts as well as in law interference is not justified. 13. The learned Advocate Mr. Due to failure to advert to this aspect the judgment and order of learned Single Judge is erroneous. (x) Learned Single Judge has exceeded jurisdiction by interfering in fact finding without a ground being made out. Thus on facts as well as in law interference is not justified. 13. The learned Advocate Mr. D.P.Bakshi appearing for respondent No.1 argued that the order passed by the learned Single Judge is perfectly within four corners of law. It was the duty of the employees to prove the number of days for which they had worked. Unless employment of 240 days in each calender year is proved, it would not be permissible to grant relief whatsoever and hence learned Single Judge has rightly exercised the jurisdiction. 14. We have examined the case and we are of the considered view that the learned Single Judge has examined the matter under Articles 227 and 226 of the Constitution of India. The order under challenge was rendered on concurrent fact findings. It was necessary that the learned Single could have reversed the finding, had the fact finding recorded by the learned Judge of Labour Court in para No. 10 of the judgment and as confirmed by the Industrial Court, suffers from defects, such as: (a) Perversity, (b) being contrary to law, (c) otherwise resulting in injustice. In absence of such findings, the jurisdiction of superintendence available under Article 226 and 227 is not invocable. Availability of jurisdiction does not per se constitute it being invokable just for sake of working. 15. In the result, we are faced with the situation where concurrent finding of fact is set aside by the learned Single Judge without holding that said finding is contrary to law. Moreover, the evidence referred to by the learned Single Judge i.e. alleged "Rate List" is something new plea, which was never raised and no evidence to prove it was produced before the trial Court. The document referred to produced in the High Court were relied upon without being proved and without opportunity to other side. No explanation as to why those documents were not produced in the Courts below. The document referred to produced in the High Court were relied upon without being proved and without opportunity to other side. No explanation as to why those documents were not produced in the Courts below. No effort was made to produce said documents in the trial Court or give explanation as to what precluded the party relying on such evidence to produce it before any of the Courts or Tribunals, from whom the case has come up to the High Court. 16. In the result, not only that it would be difficult to subscribe and uphold the judgment of the learned Single Judge, but it would also be impossible to find reason whatsoever to uphold the same. 17. Insofar as argument advanced before us that the judgment does not give due and adequate reasons is concerned, we simply record that the reasons are always depending on length and breath of the submissions, unless facts, if any, warrant detailed reasons. We were not impressed with that argument, since we have already held on facts that interference is not justified for the reasons recorded in the order. We, therefore, refrain from making any observations on this point. 18. In the result, appeal is allowed and the judgment of learned Judge passed in Writ Petition No. 2911 of 2011 dated 20th March, 2012 is set aside. The judgment and order passed by Labour Court in case 19. No costs.