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29. The next argument of Mr. Chidambaram is as regards the inclusion of a badli worker in the term "workman" in S. 3. The argument is that a badli worker is given work only when some permanent employee is absent, and therefore, he can never be said to be in service as such, much less in continuous service. The concept of a badli worker, which is peculiar to textile mills, is now well recognised. The working of a badli system celaborately brought out in a report the Badli Labour Inquiry Committee in the Cotton Textile Industry in Bombay. The Committee has observed that there is absenteeism in each mill. Therefore, there is a Badli Labour Force in each mill. At the same time, it is also observed that there is absenteeism among the Badlis. It is observed that 70% of the total number of Badlis in some of the mills in Bombay get work almost every day. But, at the same time it is observed that in some of the mills, some of the badlis get work even for less than 20 days in a month. On an average, it was shown that badlis get work for 18 days in a month, and this is because most of the mills are following the practice of providing work by rotation to badlis to ensure fair distribution of work. It is stated that in Tamil Nadu more or less a similar situation prevails. The concept of a badli worker, therefore, implies that he is given work only when some permanent worker is absent. He is employed on an independent contract of employment for that day alone. He cannot, therefore, be strictly called to be a person in service in the sense that there is a subsisting contract of employment throughout the month or throughout the year. The contract of employment comes up only when he is employed on a particular day or on a particular number of days, and there is no further right of badli worker to ask for work on some other day. "Continuous service" as contemplated by S. 3 of the Act must pre-suppose a contract of employment, and as pointed out in Bombay Union Dyeing and Bleaching Mills v. N. T. More [1980-II L.L.J. 424], which is a decision of the Bombay High Court, a contract of employment between a master and servant is not the same thing as rendering continuous service, and the two are not synonymous. Explaining the concept of employment, the Supreme Court in Chintaman Rao v. State of Madhya Pradesh [1958-II L.L.J. 252 of P. 256] has observed as follows :

"The concept of employment involves three ingredients : (1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervisions."

Section 3(1) refers to a continuous service for a period of 480 days in a period of 24 calendar months. As already pointed out, this only means that there must be an employment for a period of 24 calendar months, and in that period, there must be a continuous service for a period of 480 days. If the contract of service in the case of a badli worker is only of an intermittent nature, then, in our view, it would not be possible to hold that the workman contemplated by S. 3(1) of the Act includes a badli worker.

30. It is true that in P. Joseph v. Loyal Textile Mills [1975-I L.L.J. 498], a badli worker has been held entitled to lay off compensation. But, it cannot be forgotten that the badli workmen fell within the provisions of S. 25B(2), because the reference there was to the actual number of days worked. Accordingly, we hold that a badli worker will not be entitled to the benefits of the Act.

31. It was then argued that the Act must operate only prospectively, which, according to the learned counsel for the petitioners, meant that the period of 480 days has to be computed only after taking into account the period after 1st January, 1982. According to the learned counsel, if the period prior to the Act is taken into account, the Act will become retrospective.

(3) An apprentice or a badli worker could not be included in the "workman" referred to in Ss. 3(1) and (2) of the Act, and they will, therefore, be not entitled to the benefit of S. 3.

(4) The Act will not supersede a settlement between workers and the employer in so far as it deals with the subject of conferment of permanent status to workmen.

(5) The Act cannot be held to be retrospective in character.

The petitions are accordingly partly allowed. There will be no order as to costs.