IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1105 of 2009 Date of decision: 29.04.2009 Kuldeep Singh .....Appellant Versus H.R.T.C. and others ..… Respondent Coram : The Hon’ble Mr. Justice : Deepak Gupta, Judge. The Hon’ble Mr. Justice : V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. Ashwani K. Gupta, Advocate For the respondents: Mr. Adarsh Sharma, Advocate. Deepak Gupta, J (Oral): The petitioner is working as driver with the Himachal Road Transport Corporation. He is aggrieved by the order Annexure P-1, issued on 11.12.2008, whereby it has been ordered that he shall retire on attaining of superannuation i.e. 58 years on 30th April, 2009. The contention of the petitioner is that he is a ‘workman’ within the meaning of Fundamental Rule 56(b). It is further contended that the petitioner is an employee of Himachal Road Transport Corporation which is an Industrial 1Whether reporters of Local Papers may be allowed to see the judgment? 2 Establishment and therefore, in terms of Fundamental Rule 56(b), he can be superannuated only on attaining the age of sixty years. We had vide our order dated 22nd April, 2009 directed the H.R.T.C. to file supplementary affidavit clearly stating therein as to whether Fundamental Rules are applicable to the H.R.T.C. Supplementary Affidavit has been filed. Relevant portion of the affidavit is reproduced below: That in this regard, it is submitted that the Fundamental Rules are applicable to Himachal Road Transport Corporation as after the inception of Himachal Road Transport Corporation, the Fundamental Rules were adopted by the Himachal Road Transport Corporation. The State of Himachal Pradesh has amended the Fundamental Rules in their applicability vide notification dated 10th May, 2001. Following amendment was made to Rule 56 (b):- “ Provided that a workman appointed on or after the date of Publication of this notification in the Rajpatra Himachal Pradesh shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years” It is not disputed before us that the Himachal Road Transport Corporation is an Industrial Establishment. In fact, this matter is beyond the pale of controversy and admits of no contradiction. The only question which arises is whether 3 the petitioner is covered under Fundamental Rule 56(b) which reads as follows:- “ FR. 56 (b) a ‘workman’ who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. NOTE: In this Clause, a workman means a highly skilled, skilled, semi-skilled, or unskilled artisan employed on a monthly rate of pay in an industrial or work-charged establishment”. The contention raised by Mr. Adarsh Sharma, appearing on behalf of the H.R.T.C. is that the petitioner even if he is held to be a workman under the Industrial Disputes Act cannot be considered to be a workman within the meaning of Fundamental Rule 56(b) as he is not an artisan. It was also contended that since the State of Himachal Pradesh has amended the Rules with regard to the age of retirement, even under Fundamental Rule 56(b), the age of superannuation is 58 years and not 60 years. Both these contentions are totally without merit. As far as the contention that a driver is not an artisan and is therefore, not covered under Fundamental Rule 56(b) is concerned, reference may be made to the Judgment of Apex Court in Prithipal Singh Vs. Union of India AIR 1991 S C 915 wherein the Apex Court while interpreting Fundamental Rule 56(b) held as follows:- 4 “The appellant has to satisfy two conditions to be a ‘workman’ under the above Rule. He has to be an “artisan” and also be employed in an ‘industrial’ or ‘work-charged establishment’. A driver of staff car is undoubtedly a skilled or semi- skilled person. He has to use his whole body specially his hands and feet to drive the vehicle. The definition of word ‘artisan’ is wide enough to include a driver of a car”. In view of the law laid down by the Apex Court, there cannot be any dispute that the petitioner is an artisan. Reference in this regard may also be made to a Judgment of a learned Single Judge of this Court in CWP No. 115 of 1998 titled State of H.P. Versus Presiding Officer Labour Court & anr. wherein this Court relying upon the Judgment of Hon’ble Supreme Court held that driver is a ‘workman’ within the meaning of Fundamental Rule 56(b). The second contention is that in view of the amendment by the State of Himachal Pradesh, the petitioner has to retire at the age of 58 years. This argument is totally misconceived. The relevant portion of the Notification clearly states that a ‘workman’ appointed on or after the date of publication of the notification shall retire at the age of 58 years. Admittedly, the petitioner joined service in the year 1969 much prior to publication of this Notification and, therefore, in his case the notification is not applicable and the age of retirement would be 60 years. 5 Mr. Sharma, appearing on behalf of the H.R.T.C. lastly contended that since the petitioner is a Class-III employee, he is covered under the Civil Service Rules and as such his retirement age is 58 years. It is true that the age of retirement of Class-III employees is 58 years, but when there are specific rules applicable to Industrial Establishment then the General Rules would not prevail. It is an established principle of law that when there are two sets of Rules, the specific law/Rule will prevail over the general. In this case the petitioner admittedly is governed by Fundamental Rule 56(b) as has been stated by the Respondent-Corporation in its Supplementary Affidavit itself. Therefore, the respondent-Corporation cannot rely upon the General Rules to deny the benefit of the extended age of retirement to the petitioner. In view of the above discussion, Annexure P-1 dated 11.12.2008 is quashed and set aside and it is held that the petitioner shall superannuate on attaining the age of 60 years. The Wit Petition is disposed of in the aforesaid terms. No costs. ( Deepak Gupta ) Judge ( V.K. Ahuja ) Judge April 29,2009(BRB) 6 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 325 of 1993 Judgment for consideration please ( V.K. Ahuja ) Judge Hon’ble Mr. Justice Deepak Gupta, J: I agree/do not agree ( Deepak Gupta ) Judge Hon’ble Mr. Justice V.K. Ahuja, J. List for pronouncement of Judgment on April ,2009 ( V.K. Ahuja ) 7 Judge Court Secretary