Nepal Labor Law: Case Study on Unauthorized Absence and Dismissal

February 10, 2025

Supreme Court, Joint Bench

Honorable Justice Mr. Tanka Bahadur Moktan

Honorable Justice Mr. Kumar Regmi

Order Date: 2079.5.15 (Nepali Calendar)

076-WO-0609

Subject: Writ of Certiorari

Petitioner: Devanarayan Mahato, son of Mauje Mahato, resident of Bardibas Municipality Ward No. 4, currently residing in Bardibas Municipality Ward No. 9, Mahottari District, and formerly working as a J.T.A. at Everest Sugar and Chemical Industries Ltd., Mahottari Ramnagar, located in Gaushala Municipality Ward No. 1.

Versus

Respondent: Everest Sugar and Chemical Industries Ltd., formerly located in Ramnagar Village Development Committee, currently located in Gaushala Municipality Ward No. 1, Mahottari District.

It is the mandatory duty and responsibility of any employee or worker working in any industry or establishment to conduct themselves in accordance with the Labor Act, Labor Regulations, and the legal provisions regarding the terms of service of the employees of the industry or establishment. No employee or worker shall be allowed to be absent from the establishment where they are employed without fulfilling the assigned responsibilities and without obtaining permission from the establishment or industry or without getting leave approved, contrary to the legal provisions in the Labor Act, 2048. It is not desirable to say that an employee who is absent from the industry or establishment for thirty days or more in violation of the law cannot be punished and removed from service according to the legal provisions in Section 51(g2) of the Labor Act, 2048. (Paragraph No. 9)

Adopted Precedents:

Related Laws:

Order

Justice Kumar Regmi: The brief facts and order of this writ petition, filed under Article 46 and 133(2) of the Constitution of Nepal, are as follows:

Facts:

The respondent Labor Court, in its decision, admitted that it had not reinstated the petitioner despite the court's order and that contempt of court proceedings had been filed. In this situation, the respondent industry, which failed to reinstate the petitioner as per the court order, terminated the petitioner's service on 2073.11.16, claiming the petitioner was absent from duty. The respondent Labor Court upheld this decision on 2075.3.29. This decision has seriously violated the petitioner's right to equality under Article 18, right to employment under Article 33, and rights under the Labor Act and Labor Regulations of the Constitution of Nepal.

The respondent Labor Court's decision did not address the facts of the case. The Bijalpura Sugarcane Development Sub-center, operated by the respondent Everest Sugar and Chemical Industries Ltd., was operational and continues to be so even today. I have also filed a complaint with the Department of Labor against the then office head of the Labor Office, alleging that they submitted a report stating that the sugarcane development center where I worked had been merged, thereby affecting the decision. Even though a case was filed in the respondent Labor Court regarding the illegal transfer of the petitioner by the respondent, and an interim order was also issued to prevent the implementation of the transfer decision, the petitioner was not allowed to work and was illegally kept out of work for a long time. Later, documents were prepared stating that the sugarcane development sub-center where the petitioner worked had been merged. The decision of Everest Sugar and Chemical Industries Ltd. to remove the petitioner from service was upheld by the respondent Labor Court. This decision cannot be considered legally valid. There is a clear legal provision in Section 23(ka) of the Trade Union Act, 2049, that the office bearers and members of the working committee of a trade union cannot be transferred or promoted without their consent. The actions taken in violation of this are illegal. When any company establishes a branch or closes it, or decides to merge one branch with another, it is mandatory to obtain permission from the relevant body. However, the respondent Everest Sugar and Chemical Industries Ltd. has not obtained permission from any body.

The decision dated 2075.3.29 of the respondent Labor Court upholding the decision of the respondent Everest Sugar and Chemical Industries Ltd. to remove the petitioner from service is erroneous under Articles 17, 18, and 34 of the Constitution of Nepal, Section 10, 51, and 52 of the Labor Act, 2048, Section 23(ka) of the Trade Union Act, 2049, Section 131 and 139 of the prevailing Labor Act, 2074, and Section 54 of the Evidence Act, 2031. It also contradicts the interim order issued by the respondent Labor Court itself in the transfer annulment case. The Labor Court's decision has curtailed the petitioner's constitutional rights. Therefore, the petitioner, Devanarayan Mahato, has filed this petition seeking the annulment of the respondent Labor Court's decision by issuing a writ of certiorari.

In summary, the court ruled in favor of the respondent, upholding the dismissal of the petitioner due to unauthorized absence from work.

Summarized by

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