Labor disputes on the recognition of illegal and cancellation of the order of the state audit office on the imposition of disciplinary action in the form of a warning about incomplete official compliance
Sh. I filed a lawsuit with the court to declare illegal and cancel the order of the State Institution "Department of Internal State Audit for the Almaty region of the Committee of Internal State Audit of the Ministry of Finance of the Republic of Kazakhstan" (hereinafter referred to as the Department of State Audit / Russian State Agrarian University) dated November 15, 2019 No. 31–T on imposing on it on the basis of subparagraph 4) of paragraph 1 of Article 50 The Law "On the Civil Service of the Republic of Kazakhstan" (hereinafter – The Law on Civil Service) disciplinary action in the form of a warning about incomplete official compliance "for providing individuals and (or) legal entities with an unlawful preference in preparing and making decisions," expressed in the failure to take timely measures to bring to administrative responsibility the head of the Department of Housing and Communal Services of the city of Taldykorgan (hereinafter referred to as the Department of Housing and Communal Services) K. for violating the laws on public procurement. The decision of the Taldykorgan City Court of January 10, 2020, left unchanged by the decision of the Judicial Board for Civil Cases of the Almaty Regional Court of April 30, 2020, denied the claim. The Judicial Board for Civil Cases of the Supreme Court annulled the judicial acts of local courts and issued a new decision on the satisfaction of the claim in the case. The Order of the Russian State Institution "Department of Internal State Audit for the Almaty region of the Internal State Audit Committee of the Ministry of Finance of the Republic of Kazakhstan" dated November 15, 2019 No. 31-T on the imposition of disciplinary punishment in the form of a warning about incomplete official compliance was declared illegal and canceled on the following grounds.
Labor disputes on the recognition of illegal and cancellation of the order of the state audit office on the imposition of disciplinary action in the form of a warning about incomplete official compliance
In the case, it was established that Sh. has been working in the bodies of the Ministry of Finance of the Republic of Kazakhstan since 2017, and since April 2, 2018, he has been the chief specialist of the desk control Department of the Russian State Agrarian University. On June 12, 2019, the RSU DVGA received a submission No. 2-04-19-03841 from the Taldykorgan city Prosecutor, who pointed out non–compliance with the legislation on public procurement by the State Institution "Taldykorgan City Construction Department" (hereinafter referred to as the "Construction Department") and the State Institution "Housing and Communal Services", which, in violation of subparagraph 3) of paragraph 4 of Article 12 of the Law "On Public Procurement" they did not file lawsuits with the court regarding the recognition of service providers, LLP "S" and LLP "A", as unscrupulous participants in public procurement, who did not fulfill their obligations under public procurement contracts for construction and installation works in a timely manner (hereinafter referred to as – CFR), respectively, dated April 4, 2018 No. 4 and dated June 25, 2018 No. 037-K. The relevant audit confirmed the fact of violation of the legislation on public procurement by the State Institution "Construction Department" and in relation to its (former) head, D., the chief specialist of the Department of the Russian State University of the Far East, A. On May 22, 2019, Protocol No. 238/354 was drawn up on an administrative offense provided for in Part 10 of Article 207 of the Code of the Republic of Kazakhstan "On Administrative Offenses" (hereinafter – Administrative Code). As a result of the measures taken by the Department of State Audit on the claim of the State Institution "Construction Department", by the decision of the Specialized Interdistrict Economic Court of the Almaty Region (hereinafter referred to as the SMEC) dated September 24, 2019, S LLP, as a contractor under the SMR public procurement agreement dated April 4, 2018 No. 4, was recognized as an unfair participant in public procurement. The materials with the prosecutor's submission on the fact of non-compliance of the State Institution "OZHKH" and LLP "A" with the legislation on public procurement were entrusted by the management of the Department of State Audit to the chief specialist of the department Sh. According to the job description and part 3 of Article 804 of the Administrative Code, the powers of Sh. It included the preparation of protocols on administrative offenses provided for in part 10 of Article 207 of the Administrative Code, in relation to officials who violated the legislation on public procurement. On July 11, 2019, in response to a letter signed by the head of the State Audit Department, B. (executor Sh.) The Taldykorgan city Prosecutor's office was informed: according to the audit and audit report for violation of the deadline for the execution of the public procurement contract No. 037-K dated June 25, 2018, LLP "A" paid a penalty, obligations under the said contract were fulfilled, no damage was caused, and therefore the head of the State Institution "OZHKH" He was not brought to administrative responsibility for the absence of an administrative offense.
However, subsequently, by a letter dated July 19, 2019, B. (executor Sh.), having informed about the confirmation of the facts of improper performance by LLP "A" of the public procurement contract No. 037-K, failure by GU "OZHKH" to comply with the requirements of the law on the need to file a lawsuit to recognize the contractor as an unscrupulous participant in public procurement and to collect a penalty, informed the prosecutor that that measures to bring to administrative responsibility under part 10 of Article 207 of the Administrative Code of the head of the State Institution "Housing and Communal Services" K. will be taken upon his recovery. According to the case file, the head of the State Institution "Housing and Communal Services" K. he was on a business trip from June 30 to July 2, 2019, for the period from July 4 to July 19, 2019, temporary disability certificates were issued for him, from August 1 to August 3, 2019, he was on a business trip again, from August 5, 2019, he was granted leave, but by order of the akim dated August 8, 2019 K. He was relieved of his post at his own request. During the specified time, if possible, the chief specialist of the State Audit Department, Sh. proper measures have not been taken to bring the head of the State Institution "Housing and Communal Services" K. to administrative responsibility under part 10 of Article 207 of the Administrative Code. Subsequently, due to the expiration of the time limit established by Article 62 of the Administrative Code, K. He was never brought to administrative responsibility under part 10 of Article 207 of the Administrative Code. In this regard, on October 23, 2019, the prosecutor of the city of Taldykorgan initiated and sent disciplinary proceedings against Sh. Acting head of the Department of State Audit M. within his competence, in compliance with the requirements of legislation on public service by Order No. 28-T dated November 1, 2019 on Sh. A disciplinary penalty provided for in subparagraph 3 has been imposed for improper performance of official duties. paragraph 3 of Article 44 of the Law on Civil Service, - in the form of a severe reprimand, which was notified by the Taldykorgan city prosecutor in a letter dated November 4, 2019. On November 5, 2019, the prosecutor sent a letter to the Department of the Agency of the Republic of Kazakhstan for Civil Service Affairs in the Almaty region (hereinafter referred to as the Department of the ARCpDGS), which indicated the consequences of improper execution of Sh. official duties and the formal approach of the leadership of the Russian State University of the Far East to the issue of disciplinary action.
Labor disputes on the recognition of illegal and cancellation of the order of the state audit office on the imposition of disciplinary action in the form of a warning about incomplete official compliance
In this regard, with reference to paragraph 6 of Article 44, subparagraph 4) of paragraph 1 of Article 50 of the Law on Civil Service, the prosecutor raised the issue of bringing to justice Sh., the head of the Department of State Audit B. and his deputies M. and T., the head of the department, specialists of the personnel management service of the Department of State Audit. By orders of the acting head of the RSU DVGA M. dated November 15, 2019, No. 46-O, 47-O, Order No. 28-T dated November 1, 2019 (on the announcement of the severe reprimand) was canceled, and an internal investigation was ordered. On the same day, the chief specialist of the Russian State University of Economics, A. based on the already available materials, a conclusion has been drawn up on the commission of Sh. a misdemeanor discrediting the public service provided for in subparagraph 4) paragraph 1 of Article 50 of the Law on Civil Service. By a protocol decision dated November 15, 2019, the disciplinary commission of the State Audit Department also recommended disciplinary action against Sh. for "giving unlawful preference to individuals and (or) legal entities in preparing and making decisions," for which responsibility is provided for in subparagraph 4) paragraph 1 of Article 50 of the Law on Civil Service. By order of the acting head of the RSU DVGA M. dated November 15, 2019, No. 31-T on Sh. A disciplinary penalty was imposed under subparagraph 4) of paragraph 3, paragraph 6 of Article 44 of the Law on Civil Service in the form of a warning of incomplete official compliance for committing a disciplinary offense discrediting the civil service provided for in subparagraph 4). paragraph 1 of Article 50 of the Law on Civil Service. After that, the Taldykorgan city Prosecutor's Office recalled the letter dated November 5, 2019, previously sent to the ARKpDGS Department. Sh. motivated the claims in the case by arguments that he had not given anyone an illegal preference. In dismissing the claim, the court of first instance proceeded from the fact that the applicant had not provided evidence refuting the legality of the disciplinary measure applied against him. The Regional Court, agreeing with the conclusions of the Taldykorgan City Court, stated that the improper execution of Sh. his official duties allowed the head of the State Institution "Housing and Communal Services" K. to evade administrative responsibility.
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