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Compensation for the victims of Rana Plaza: Answer to some pertinent questions

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Bangladesh Institute of Labour Studies (BILS) wanted opinion on the following Points: i. Whether personal law of inheritance is applicable in case of distributing compensation under labour Law. ii Whether compensation among the dependents of the
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  Compensation for the victims of Rana Plaza: Answer to some pertinent questions Tapas K. Baul BILS Wanted Opinion on the following Points: i. Whether personal law of inheritance is applicable in case of distributing compensation under labour Law. ii Whether compensation among the dependents of the victims can be divided equally. iii. What is the correct position of law in Bangladesh regarding the distribution of compensation among the families of the victims of Rana Plaza?. For finding the answers I have consulted the following books: 1.   Bangladesh Sromo Ain,2006, ILO & BTLS. 2007, Impression, Dhaka, 231. 2.   The General Clauses Act, 1897, (x of 1897) with all Bangladesh Amendment, 2 nd Ed 1984, DLR, Dhaka, 38. 3.   Transfer of Property Act, 1882 [IV of 1882, 4 th  Ed, 2013, DLR, Dhaka, 580. 4.   B.B. Mitra, The Indian Succession Act, 1925 (Act No-XXXIX of 1925), Shanmlehudas Mhitra (ed), 10 th  ed, 1973, Eastern, Calcutta, 522. 5.   Mulla ‟s Hindu Law, Satyajee t A. Desai, Butterworths, 21 st  Ed. 2010, Haryana, 1451. 6.   Mulla ‟s  Principles of Mahomedan Law, M. Hidayatallah and A. Hidayatallah, (ed) Bombay, 424. 7.    Nirmalendu Dhar, Dhar on Labour and Industrial Laws of Bangladesh, Apan, Dhaka, 327. While writing this opinion, I have also consulted ILO Convention 121 1  [Employment Injury Benefits Convention] and Recommendation 121 2  [Employment Injury Benefits Recommendation] and also I have considered several newspaper reports and notes provided  by BILS to understand the on-going practice on providing compensation in Bangladesh in case of fatal accident of a worker. 1  http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312266 2 http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0::NO::P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:REC,en,R121,%2FDocument  1 st  Question: Applicability of Personal Law of Inheritance The first question is one the applicability of the personal law of inheritance in case of distribution of compensation a labour who has died in course of employment. The answer is - no, the law of inheritances will not be applicable for distribution of compensation. Reasons:   In Bangladesh, the application of personal law of Inheritance will not apply for the distribution of compensation among the beneficiaries of the workers who died due to fatal accidents. First of all, this is because of the application of the Bangladesh Labour Act, 2006 (XLII of 2006). The preamble of the law clearly states that: An Act to consolidate and amend the laws relat ing to […] payment of wages and compensation for injuries to workers […].   Whereas it is expedient to consolidate and amend the laws relating to […] payment of wages and compensation for injuries to workers […]  Section 1 sub-section 3 also states that: (3) Save as otherwise specified elsewhere in this Act, it extends to the whole of Bangladesh. This means, this Act is applicable on each and every citizen irrespective of their religion or caste. If the Parliament had any other intention, e.g., the compensation payable to a deceased worker‟s dependents will be distributed as per the deceased‟s religion or caste then it would have been mentioned clearly. Moreover, by the Preamble the Parliament has also made it clear that the Bangladesh Labour Act, 2006 is the only Act to consolidate and amend the laws relating to compensation and no reservation or condition is provided in the Preamble of the Act through the inclusion of „proviso‟ . Secondly, if the definition of „dependent‟ is analyzed it can be easily conceive d that the Courts have not interpreted this term on the basis of personal law but on the basis of the strict  principles laid down by the Labour Act. For example, the question of dependency is a question of fact and the relatives of a deceased workman cannot claim compensation by merely proving the specified relationship, they have to prove that they were wholly or in part  dependent on the earnings of the workman. 34  The term includes certain near relatives but certain near relatives, e.g., a major son, are expressly excluded; hence, it follows that  particular persons who do not or may not include certain heirs to the deceased are entitled to compensation. 5  This discussion also shows that the Court while dealing with Labour Law does not prefer to interpret the issues like dependents and compensation from the point of  personal law of inheritance. However, due to absence of specific provisions of law and / or case-law or academic discussion on this issue, there is still ample space of confusion since „compensation‟ includes money 6  which is a movable property 7  and a subject-matter of personal law of inheritance. 2 nd  and 3 rd  Question: Equal Distribution of Compensation among the Dependents and Existing Law for distributing compensation Both the questions are answered in Chapter XII of the Bangladesh Labour Act, 2006; specifically section 155 is the provision which deals with the „distribution of compensation‟.  Section 155 states that: 155. Distribution of compensation : (1) No payment of compensation in respect of a worker whose injury has resulted in death, and no payment of a lump sum as compensation to a person under a legal disability, shall be made otherwise than by deposit with labour court. (2) No such payment made directly by an employer shall be deemed to be a payment of compensation under subsection (12), unless a worker, during the periods of his 3  Dhar, p. 20 4  In England and Wales,     the fact that a person comes within the statutory dependant does not automatically entitle them to bring an action. A dependant must show that they have suffered a financial loss or had a reasonable expectation of benefit. The claimant does not have to prove definitively that there is a financial loss, a court can assess the claim on a probability basis, Davies  –  v- Taylor [1974] AC 207. See: http://fatalaccidentlaw.wordpress.com/2013/07/22/the-law-relating-to-fatal-accidents-an-introduction/   5    M.T. Hanifa Bai vs. Korand Port Trust, A I R 1929 Sind 177 = 117 I.C. 151 23 S.L.R. 359, see ibid    6  Compensation: something, typically money, awarded to someone in recognition of loss, suffering, or injury.https://www.google.com.bd/search?q=definition+compensation&oq=definition+compensa&aqs=chrome.1.69i57j0l5.11162j0j7&sourceid=chrome&espv=210&es_sm=93&ie=UTF-8  7   Section 3(34), General Clauses Act, 1897 (X of 1897): “movable property” shall mean property of every description, except immovable property. See: The General Clauses Act, 1897, (x of 1897) with all Bangladesh Amendment, 2 nd Ed 1984, DLR, Dhaka, p. 8.  employment, nominated in the prescribed manner any of his dependents to receive the amount of compensation in the event of an injury resulting in his death: (3) Not withstanding anything contained in sub-section (1), in the case of a deceased worker, an employer may make to any dependent advances on account of compensation and such advances shall be deducted by the labour court from the compensation payable to that dependent and repaid to the employer. (4) Any other sum which is payable as compensation may be deposited with the labour court on behalf of the person entitled thereto., (5) The receipt of the Labour court shall be a sufficient discharge in respect of any compensation deposited with it. (6) On the deposit of any money under sub-section (1) as compensation in respect of a deceased worker, the Labour court shall, if it thinks necessary, cause notice to be  published or to be serviced on each dependent in such manner as it thinks, fit, calling upon the dependents to appear before it on such date as it may fix for determining the distribution of the compensation. (7) If the labour court is satisfied after any enquiry which it may deem necessary, that no dependant exists, it shall not less than two years after the date of deposit, transfer the balance of the money to such fund or funds for the benefit of workers as the Government may, by notification in the official Gazette, specify or establish. (8) The labour court shall on application by the employer, furnish a statement showing in detailed all disbursements made. (9) Compensation deposited in respect of a deceased worker shall, subject to any deduction made under the proviso to sub-section (1), be apportioned among the dependents of the deceased worker or any of them in such proportion as the labour court thinks fit, or may, in the discretion of the labour court, be allotted to any one dependant. (10) Where any compensation deposited with the Labour court is payable to any  person, the labour court shall if the person to whom the compensation is payable is not a person under a legal disability, and may, in other cases, pay the money to the person entitled thereto. (11) Where any lump sum deposited with the Labour court is payable to a person under a legal disability, such sum may be invested, applied or otherwise dealt with for  the benefit of such person during his disability, in such manner as the Labour court may direct. (12) Where a half monthly payment is payable to any person under a legal disability the labour court may, of its own motion or on an application made to it in this behalf, order that the payment be made during the disability to any dependant of the worker or to any other person whom the labour court thinks best fitted to provide for the welfare of the worker. (13) Where, on application made to it in this behalf or otherwise, the labour court is satisfied that, on account of neglect of children on the part of a parent or on account of the variation of the circumstances of any dependent or for any other sufficient cause, and order of the labour court as to the distribution of any sum paid as Compensation or as to the manner in which any sum payable to any such dependant is to be invested, applied or otherwise dealt with, ought to be varied, the Labour court may make such order for the variation of the former order as it thinks just in the circumstances of the case: 8  Provided that no such order prejudicial to any person shall be made unless such person has been given an opportunity of showing cause why the order showing cause why the order should not be made, or shall be made in any case in which it would involve the repayment by a dependant of any sum already paid to him. (14) Where the Labour court varies any order under sub-section (13) by reason of the fat that payment of compensation to any person has been obtained by fraud, impersonation or other improper mans, any amount so paid to or on behalf of such  person may be recovered in the manner here in after provided in section 329. There is no major contrast among the provisions of Chapter XII of the Act and Convention 121 and its corresponding Recommendation 121 of the ILO. However, Bangladesh is yet to ratify C121 and its corresponding R121. It is pertinent to mention here that like C121, the compensation provisions of the 2006 Act, apply for all the workers irrespective of their nature 8  In England and Wales as well if any of the dependents are children or protected parties then the court will have to apportion any damages awarded or approve and apportion any sums that relate to their dependant. Generally apportionment is done on fairly robust basis and takes into account that it usually a surviving parent who is caring for the remaining children, R  –  v- Criminal Injuries Compensation Board, ex parte Barrett, [1994] PIQR Q44. http://fatalaccidentlaw.wordpress.com/2013/07/22/the-law-relating-to-fatal-accidents-an-introduction/,    more detailed provisions are provided in case of dependent children in Practice Direction 21, Rule 7 of Civil Procedure Rules of England and Wales, See: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part21/pd_part21#7.1  
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