JUDGMENT 1. - By this writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of order dated 28.8.1989 (Annx. 5) terminating the services of the petitioner. The petitioner further seeks direction to be issued to the respondents to fix the petitioner in the pay scale of the post of Nakedar from the date he was appointed as Nakedar and to pay him the amount became due to him as a result of his fixation in the pay scale of Nakedar. The petitioner also prayed that the respondents be directed to pay him interest @ 18% p.a. on the amount became due to him as a result of fixation of the petitioner in the pay scale of Nakedar. 2. Brief facts as stated in the writ petition are that as some posts were vacant, the petitioner offered his services by an application for appointment to the post of Sub-Nakedar in the Municipal Board, Parbatsar on 4.2.1988 (Annx. 1). The petitioner was appointed for a period of 30 days on daily wages C4 14/- as per endorsement. It is alleged that though no fresh order was passed extending the term of the appointment of the petitioner but he was continued in service. Thereafter the petitioner made an application on 1.2.1989 for extension of term of the appointment order. On the said Application Anx. 3 an order was made by the respondents extending the term of the petitioner for two months. The term of that appointment order was expired on 31.3.1989. Thereafter the petitioner again made an application for extending the term of the appointment order. On that application, an endorsement was made on 4.4.1989 purporting to appoint the petitioner on daily wages. The petitioner has alleged that he again moved an application on 3.8.1989 (Anx. 4) for extending the appointment and the term of the petitioner was extended for two more months but before the expiry of this term of two months on 3.10.1989, the petitioner's services were terminated vide order dated 28.9.1989 (Anx. 5) in pursuance of the circular of the Government dated 26.8.89 (Anx. 6). Hence, this writ petition. 3. This writ petition has been filed on 24.10.1989 and by interim order operation of the impugned order was stayed vide order dated 25.10.1989. 4. 5) in pursuance of the circular of the Government dated 26.8.89 (Anx. 6). Hence, this writ petition. 3. This writ petition has been filed on 24.10.1989 and by interim order operation of the impugned order was stayed vide order dated 25.10.1989. 4. Reply to the show cause notice has been filed on 23.7.1992 raising preliminary objections that the petitioner has not completed 240 days and he has not explained any reason as to why he has not availed the statutory alternative remedy available under Section 300, 310(5) of the Rajasthan Municipality Act, 1959 and also under Section 10 and other provisions of the Industrial Disputes Act. It has been stated that the nature of the appointment of the petitioner was daily wage and he was terminated as his services were not required due to financial restraints as per direction of the State Government. It has also been stated that the State Government is a necessary party and without impleading it, the writ petition is not maintainable. 5. Rejoinder has also been filed by the petitioner stating that no relief has been claimed against the State Government and the petitioner has already completed 240 days as per Anx. P/9. 6. Mr. Mridul, learned counsel for the petitioner has contended that this writ petition is pending for he last six years and the same has been admitted. He has also contended that the petitioner is continuing in service on the basis of stay order of this Court, therefore, this writ petition cannot be dismissed on the ground of availability of alternative remedy after a period of six years. He has relied on Prem Shankar Sharma v. Union of India (WLR 1994 Raj. 235) , R.S.E.B. v. Munsif & Judicial Magistrate, Dausa (WLR 1994 Raj. 517) , L. Hirday Narain v. Income Tax Officer, Bareilly ( AIR 1971 SC 33 ) and Purshottam Singh v. The Union of India (WLN 1980-321). 7. Mr. R.K. Mehta, learned counsel for the respondent has urged that this case is squarely covered by the Full Bench decision rendered by five Hon'ble Judges of this Court and as statutory alternative remedy is available to th3 petitioner he cannot invoke extra ordinary jurisdiction. 7. Mr. R.K. Mehta, learned counsel for the respondent has urged that this case is squarely covered by the Full Bench decision rendered by five Hon'ble Judges of this Court and as statutory alternative remedy is available to th3 petitioner he cannot invoke extra ordinary jurisdiction. He has also urged that the petitioner cannot claim any right to be heard in the writ jurisdiction on the basis of order admitting the matter and on the basis of stay order operating in favour of the petitioner for the last six years as disputed questions of fact are involved particularly when in view of the Five Judges decision, the writ petition is not maintainable and the petitioner has to approach the Labour Court. 8. I have heard learned counsel for the parties and perused the material on record. 9. It is settled position of law that alternative remedy will not bar if the impugned order is without jurisdiction or if there is a clear violation of statutory rules. It is also not in dispute that objection regarding availability of alternative remedy cannot survive if the case has already been admitted. But each case depends upon the facts of its own. The Five Judges Bench of this Court in Gopilal Tell v. State of Rajasthan (WLC (Raj.) 1995 (2) 1) has over- ruled earlier Full Bench decision of three Judges rendered in Smt. Indu v. Municipal Council, Jodhpur (RLR 1991(1) 68) and D.B. Decision in Rajasthan Pul Nigam Workers Union v. Rajasthan State Bridge Construction Corporation Ltd. (RLR 1991(2) 1) and has opined that the conditions prescribed under Section 25F of the I.D. Act for retrenchment of a workman have been fulfilled or not, is a pure question of fact and in order to arrive at a conclusion/recording finding, some investigation/enquiry has to be embarked upon, which is in our opinion would be beyond the purview of Article 226 of the Constitution of India. The learned Judges held that in such cases the normal rule for an employee should be to avail remedies provided under the Act and entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting the remedies should be with great care and caution and in very exceptional cases. 10. The learned Judges held that in such cases the normal rule for an employee should be to avail remedies provided under the Act and entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting the remedies should be with great care and caution and in very exceptional cases. 10. Having given my earnest consideration to the arguments advanced and the above case law, in the instant case I find that the petitioner has not placed any material on record to show that the alternative remedy is not effective or adequate and the statutory remedy is ill suited to decide the controversy and the material which is available on record is not sufficient to decide the controversy. The dispute regarding appointment itself has been raised in the absence of there being any separate appointment order, the petitioner has completed 240 days in one calendar year or not and further whether the compliance of Section 25 F of the I.D. Act has been made or not, are the questions of fact and need investigation. Under the circumstances, no relief can be granted to the petitioner at this stage and the cases cited by the learned counsel for the petitioner are not helpful. The ad-interim order dated 25.10.1989 stands discharged. 11. Accordingly, the writ petition has no force and the same is hereby dismissed. However, keeping in view that the matter has remained pending in this Court since 1989, it would be just and proper in this case if the petitioner is allowed to move Government for referring the dispute to the Industrial Tribunal for adjudication. In case such an application is made by the petitioner within one month from today, the concerned Government Authority shall decide the same within three months of its presentation. *******