Appeal No 129 of 1986
From the Judgment and Order dated 1251982 of the Allahabad High Court in Civil Misc
Writ Petition No 13431 of 1981
BD Agarwal and Indeever Goodwill for the appellant
AK Srivastava for the Respondents
The following Order of the Court was delivered This appeal by special leave has been filed by the landlady
She laid action under s21 of the UP Urban Building Regulation of letting rent and eviction Act 1972 for short the Act  for eviction of the tenant on the ground of bona fide requirement to start business by her son
The prescribed authority and the Appellate Tribunal found as a fact that the appellant required the premises bona fide to start the business
But the High Court allowed the writ petition set aside the order on the sole ground that the married daughters of the original tenant Lalu were not impleaded who are the necessary parties and therefore the non joinder of the necessary parties disentitle the landlady to have the ejectment of the tenants namely the sons and the widow of the deceased tenant Lalu
The only question that arises in this case is whether the married daughters of the deceased tenant are necessary parties and that non impleading them would disentitle the landlady to maintain the action for ejectment
Admittedly Lalu the original tenant died in 15
Thereafter the pro ceedings were initiated in 1974
Till then one of the sons of Lalu 537 namely Bhole Nath was in occupation of the premises and did carry on business as admitted by him in affidavit Exhibit SA II that the deponent is the tenant of a portion of house No 55 Thatheri Bazar Allahabad on payment of Rs 40 per month as rent including electric charges
It is also not in dispute that the married daughters never participated nor claimed interest in the business conducted by Bhole Nath
It is also an admitted fact that even before the death of the father they were married and they are living with their husbands elsewhere
Indisputably s3 a2 postulates that In this Act unless the context otherwise requires a tenant in relation to a building means a person by whom its rent is payable and on the tenant s death 2 in the case of a non residential building his heirs
 Therefore as defined under s3a2 all heirs of the tenants are the tenants who succeeded intestate as per the 
Certainly therefore they are tenants within the meaning of s3a2
They are entitled to succeed to the tenant s lease hold rights under the Act including not merely to the liabilities to pay rent as contended by the appellant but also to continue the business until duly ejected as per the provisions of the Act
Whether non im pleadment of the married daughters would vitiate maintain ability of the proceedings for ejectment
The finding re corded by the Rent Appellate Tribunal that by necessary implication the married daughters surrendered their tenancy rights inherited under the Act
After the demise of Lalu the daughters evinced no interest to assert their rights is well justified
Once that is found to be so their nonim pleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintainability of the proceedings for ejectment itself
The High Court committed grave errors of law in allowing the writ petition and dismissing the application for ejectment
The order of the High Court is set aside and that of the Prescribed Authority and the Tribunal are restored
It is not in dis pute that the landlady offered a reasonable portion of the premises to the respondent to an extent of 3 12 x 6  in the Varanda but respondent had refused to accept that offer but in this Court the learned counsel for the respondents re quested to allow the tenant to retain the portion offered
In fairness Mr Agarwal learned senior counsel for the appellant has not objected to it
Accordingly it is open to the tenant to occupy the portion offered by the appellant and vacate the other portion which is required by the peti tioner for starting the business of her son
The appellant would carve out the portion in a suitable and convenient manner to run the business by the respondent
The appeal is allowed with the above modifications but in the circum stances parties are directed to bear their own costs
NPV Appeal Allowed


Summary:
The appellant was in the service of the respondent company as a Section Salesman
He was terminated from serv ice on 12th July 1973 on the ground that he was on an unauthorised absence since 13th January 1973
At the instance of the appellant the Government referred to the Labour Court for adjudication the question whether the termination of the services of the appellant by the respondent company was legal and justified and if not to what relief he was entitled to
The Labour Court held that the appellant was not a workman and that therefore the reference was incompetent but it answered the question whether the termination itself was illegal in favour of the appellant
The appeal was filed in this Court against the order of the Labour Court
Dismissing the appeal this Court HELD 1
In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellant s service was terminated the employee has to be under the employment to do the work of one of the types of work ie manual skilled rodor clerical in nature
475 E 473 2
The appellant was employed to do canvassing and promoting sales for the company
The duties involve the suggesting of ways and means to improve the sales a study of the type or status of the public to whom the product has to reach and a study of the market condition
He was also required to suggest about the publicity in markets and melas advertisement including the need for posters holders and cinema slides
These duties do require the imaginative and creative mind which could not be termed as either manu al skilled unskilled or clerical in nature
The supervis ing work of the other local salesman was only incidental to his main work of canvassing and promotion in the areas of his operation
Such a person cannot be termed as a workman
475 F G 3
The Sales Promotion Employees Conditions of ServiceAct 1976 defines sales promotion employees as meaning a person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both
476 A B 4
The object of the enactment and the employees covered by the enactment also go to show that persons who are em ployed for sales promotion normally would not come within the definition of workmen under the Industrial Disputes Act
476C D In view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage
To meet the ends of justice the Company is to pay an amount equivalent to three years salary at the rate he was drawing when the appellant s services were terminated in addition to whatever amount they were paying during the pendency of the appeal
476 EF Burmah Shell Oil Storage and Distribution Company vs Burmah Shell Management and Staff   DS Nagraj vs Labour Officer Kamal  Ors  JJ
Decbane Distributor vs State of Kerala and Ors  referred to