On recognizing as illegal the order of the head of the Police Department to reinstate him in his former position and collect wages, housing payments for the time of forced absenteeism  

 

On June 18, 2025, No. 7520-25-00-2/6365 District Court No. 2 of Almaly district of Almaty, consisting of: the presiding judge Sarsenova K.K., with the secretary of the court session Temirgalieva Zh., considered online through the use of a videoconference system in open court a civil case on the claim: PLAINTIFF: M.R.K. DEFENDANT: State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan"

THE PLAINTIFF'S CLAIMS: 1. To declare illegal the order of the Head of the Almaty City Police Department No. 244 dated 03/06/2025 regarding M.R.K.;

2. Reinstate M.R.K. in his former position from March 6, 2025;

3. collect from the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" in favor of M.R.K. wages for the time of forced absenteeism from March 6, 2025 to the day of reinstatement at work;

4. collect from the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" in favor of M.R.K. housing payments in accordance with the "Rules for providing official housing for employees of internal affairs bodies, calculating the amount, assigning, recalculating, making, terminating, suspending and resuming housing payments, as well as the categories of positions of employees of internal affairs bodies eligible to receive housing payments", approved by Resolution of the Government of the Republic of Kazakhstan dated August 5, 2021 No. 524, during the period of forced absenteeism from March 6, 2025 to the day of reinstatement at work;

Plaintiff Mr.K., his representatives plaintiff Sarzhanov G., Nigmetov S. Representatives of the defendant Suleimenov A., Musaev R.

The plaintiff worked as the head of the Department of investigation of road accidents of the Department of Inquiry of the Almaty Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter DP Almaty). By Order of the head of the Almaty City Police Department No. 244 l/s dated March 06, 2025, the plaintiff was relieved of his post and placed at the disposal of the Police Department and his class was lowered by one step.

The plaintiff appealed to the court (subject to clarification), considers the above-mentioned order illegal and unfounded, the defendant grossly violated the requirements of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), and was subject to a penalty in the form of "dismissal", which is not provided for by the Labor Code.

The defendant did not specify which rules, instructions, or regulations he violated. In addition, from March 6 to March 12, 2025, he was being treated in a medical facility for health reasons, and accordingly, disciplinary action could not be imposed until the end of treatment.

The text of the order states that he treated his official duties improperly, did not control subordinates and carried out insufficient individual educational work with the staff, this does not correspond to reality.

He regularly, on a daily basis, explained the current legislation on combating corruption to each employee, about the inadmissibility of committing corruption offenses and strict compliance with the law, and took away obligations from investigators to prevent the facts of corruption offenses.

From the text of the order, it is impossible to establish a causal relationship between the disciplinary offenses imputed to him and the detention of the investigator of the ORDTP UD DP of Almaty, K.D.M. The fact that the investigator, K. D.M., despite the requirements of the Law, despite the individual educational work carried out with him, committed a criminal offense is not his fault.

He believes that the internal investigation was conducted superficially, and he was not given the opportunity to present arguments that could influence the adoption of an objective and legitimate decision by the Disciplinary Commission.

Asks the court:

to declare illegal the order of the head of the Almaty city Police Department No. 244 dated 03/06/2025 regarding his;

to restore him to his former position from March 6, 2025; to collect from the defendant in his favor wages for the time of forced absenteeism from March 6, 2025 to the day of reinstatement at work, housing payments in accordance with the "Rules for providing official housing for employees of internal affairs bodies, calculating the size, appointment, recalculation, implementation, termination, suspension and resumption of housing payments, as well as categories of positions of employees of internal affairs bodies who are entitled to receive housing payments", approved by

By Decree of the Government of the Republic of Kazakhstan dated August 5, 2021 No. 524, for the period of forced absenteeism from March 6, 2025 to the day of reinstatement at work;

the cost of paying for the assistance of a representative in the amount of 700,000 tenge. The defendant provided a written response to the claim.

The plaintiff, the plaintiff's representatives during the court session, asked to satisfy the claim on the grounds set out in it, giving similar explanations.

During the court session, the defendant's representatives did not recognize the claim, on the grounds set out in the written response, including explaining that according to the materials of the official investigation, on March 05, 2025, employees of the Department of the Anti-Corruption Agency for Almaty detained the investigator of the Department for Investigation of road accidents of the Department of Internal Affairs of Almaty, K.D.M. for receipt of funds in the amount of 700,000 tenge.

A criminal case of the ERDR No. 257500131000009 dated 03/05/2025 was registered against K.D.M. under art.366 Part 2 of the Criminal Code (receiving a bribe). Due to improper performance of official duties, expressed in the lack of proper departmental control over the activities of subordinates and insufficient individual educational work among the personnel, on March 06, 2025, by order of the head of the Almaty Police Department No. 244, M.R. was relieved of his post.

At the same time, prior to the occurrence of these events, the plaintiff had previously been reprimanded by Order No. 126 dated 02/10/2025 for the lack of proper departmental control over the activities of subordinates during the pre-trial investigation.

Taking into account the outstanding disciplinary penalty of 02/10/2025, the repeated commission of a similar offense, on March 06, the plaintiff was brought to disciplinary responsibility. On March 06, 2025, the inspector of the ILS UVIKR DP of Almaty, Nursapa A., compiled a report stating that during the internal investigation on 03/06/2025, M.R. was invited to office 422, who was notified that a meeting of the Disciplinary Commission on the above fact would be held at 09:00.

After reviewing the materials of the official investigation, M.R. refused to sign, and an act was drawn up. After that, M.R. announced that he would proceed to the office of the head of the Department of Internal Affairs of Almaty, A.S. Abdraimov, to attend a meeting of the disciplinary commission on the VKS. However, he did not attend the meeting of the commission, without valid reasons.

It follows from the CCTV recordings that on 03/06/2025, the plaintiff entered the office building at about 07:40 hours, and left the building at about 08:00 hours, talking on a mobile phone.

An ambulance team was called by the plaintiff, and a consultation with a local doctor was recommended in the alarm list, i.e. the ambulance team did not diagnose the patient's condition, which poses a potential threat to life, allowing for emergency hospitalization for emergency medical care.

However, instead of going to the meeting of the disciplinary commission, the plaintiff went to polyclinic No. 36 of the Nauryzbai district of Almaty in order to open a temporary disability certificate, despite the fact that he is attached to polyclinic No. 10 of the Auezovsky district of Almaty. He believes that the plaintiff knew that opening a temporary disability certificate would allow him to appeal the decision of the Disciplinary Commission to dismiss him from his post.

The defendant sent a request to the KGP at the City Polyclinic No. 36 regarding the opening of a temporary disability certificate, according to the response to the request, when M.R.K. applied to polyclinic No. 36, a number of gross violations were identified by the therapist when applying for temporary disability certificates, temporary disability sheets No. 1167370 dated 03/06/2025, No. 1167408 dated 03/11/2025 has been cancelled. They ask to dismiss the claim.

According to requirements No. 1-4, according to paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 28, 2024 No. 1 "On certain issues of the application of legislation by courts in resolving labor disputes" (hereinafter NP), labor relations of certain categories of persons are regulated not only by the norms of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code), but also by special legislative acts (on law enforcement service, on military service and the status of military personnel, on civil service, on internal affairs bodies, and others).

The provisions of paragraph 1 of Article 16 of the Law of the Republic of Kazakhstan "On Law Enforcement Service" (hereinafter referred to as the Law) determine that employees are required to:

1) comply with the Constitution of the Republic of Kazakhstan and the legislation of the Republic of Kazakhstan;

4) exercise powers within the limits of the rights granted to them and in accordance with their official duties;

5) observe official and labor discipline;

7) comply with the requirements of the Code of Ethics of the Civil Service, approved by the President of the Republic of Kazakhstan. According to the requirements of paragraph 1 of Article 57 of the Law, the basis for imposing a penalty is the commission of a disciplinary offense by an employee.

Paragraph 2 of this norm defines the criteria for imposing disciplinary punishment and determining its type. According to paragraphs 3-4 of article 57 of the Law, when an employee commits a disciplinary offense, a written explanation is required from him. If, in a written explanation, the employee agrees with the fact that he has committed this disciplinary offense, the head of the law enforcement agency or the authorized head has the right to impose a penalty without conducting an internal investigation.

If an employee does not agree in his written explanation with the fact that he committed a disciplinary offense, then an internal investigation should be conducted by order of the head of the law enforcement agency or an authorized head.

The penalty in the form of a warning about incomplete official compliance, dismissal from office, dismissal and expulsion from the organization of law enforcement education is imposed based on the results of an internal investigation and the relevant recommendations of the disciplinary commission.

In accordance with paragraphs 1, 3, and 5 of Article 58 of the Law, an internal investigation is conducted by decision of the head or authorized head of a law enforcement agency if it is necessary to identify the causes, nature, and circumstances of a disciplinary offense committed by an employee, confirm the presence or absence of circumstances provided for by this Law, and in accordance with the legislation of the Republic of Kazakhstan, including based on a written report from the staff and reports from law enforcement and judicial authorities.

When conducting an internal investigation, measures should be taken to establish an objective and comprehensive:

1) the fact that an employee has committed a disciplinary offense;

2) the reasons and conditions that contributed to the commission of disciplinary misconduct by the employee;

3) the nature and extent of the harm caused by the employee as a result of the commission of a disciplinary offense;

4) the presence or absence of circumstances preventing an employee from passing through the service.

The court found that the inspector of the ILS UVIKR DP of Almaty, Nursapa A., conducted an internal investigation into the fact of illegal actions (receiving a bribe) of the investigator of the department, K. D.M., based on the results, a conclusion was drawn up on March 06, 2025, from which it follows that the plaintiff had improper performance of official duties, expressed in the absence of proper departmental control over the activities of subordinates, insufficient individual educational work among the staff, which led to the commission of a criminal corruption offense by subordinates.

The conclusion of the internal investigation was the subject of consideration by the disciplinary commission of the Almaty City Police Department, as a result of which it was decided to recommend that the plaintiff be dismissed from his post.

In this case, the court, having studied the submitted materials, including the above-mentioned conclusion, considers worthy of attention the arguments of the claim that the official investigation was conducted superficially, since it does not appear from the conclusion that any circumstances were investigated during the investigation indicating that improper performance of official duties actually took place on the part of the plaintiff. responsibilities, expressed in the absence of proper departmental control over the activities of subordinates.

At the same time, it follows from the plaintiff's explanation that he constantly clarified the legislation on combating corruption among subordinates, on the inadmissibility of committing corruption offenses, and in order to confirm the ongoing work with the staff, the plaintiff took away from the interrogators the obligations to prevent them from committing corruption offenses, which is confirmed by the obligations presented.

Further, according to paragraph 1 of Article 54 of the Labor Code, termination of an employment contract at the initiative of the employer's legislation during the period of temporary disability and the employee's stay on vacation is not allowed, except for the cases provided for in subparagraphs 1), 18), 20) and 23) of paragraph 1, paragraph 1-1 of Article 52 of this Code.

It follows from the case file that at the time of the meeting of the disciplinary commission and the issuance of the contested order, the plaintiff was absent from work and applied to a medical institution, and a temporary disability certificate was opened to him.

The defendant's arguments that the temporary disability certificates, No. 1167370 dated 03/06/2025, No. 1167408 dated 03/11/2025 were opened in gross violation of the law and annulled, are not grounds for rejecting the claim, given that at the time of the issuance of the contested order, the defendant was not aware of the circumstances related to the plaintiff's appeals to a medical institution and obtaining a temporary disability certificate.

In fact, the defendant first issued an order to dismiss the plaintiff from office, and only subsequently measures were taken to establish the circumstances of the legality/illegality of issuing a temporary disability certificate to the plaintiff. It also follows from the case file that the contested order was issued on March 06, 2025, and the defendant's request to Polyclinic No. 36 took place only on April 22, 2025, and the medical institution's response was received on April 23, 2025.

It follows from this that at the time of issuing the contested order, the defendant did not know and could not have known that the sick leave was issued with any violations, accordingly, he was obliged to take it into account, despite the fact that the current labor legislation restricts the right of the employer to terminate or terminate the employment contract during the period of temporary disability of the employee at the initiative of the employer.

In such circumstances, the dismissal of the plaintiff during his temporary disability was carried out in violation of the procedure established by labor legislation, accordingly, the disputed order is subject to cancellation. Since the plaintiff's dismissal was carried out in violation of the law, he is therefore subject to reinstatement at work.

According to paragraph 1 of Article 161 of the Labor Code, an employee who is reinstated at his previous job is paid the average salary for the entire time of forced absenteeism (suspension from work) or the difference in wages during the performance of lower-paid work in case of illegal transfer to another job, but not more than six months. The plaintiff requests that the defendant collect wages for the time of forced absenteeism and housing payments for the period from March 6, 2025 to the day of reinstatement at work.

Wages for the time of forced absenteeism from March 06, 2025 to the present are subject to collection from the defendant in favor of the plaintiff, taking into account the certificate submitted to the court by the Ufa DP of Almaty dated May 16, 2025, according to which the average monthly salary of the plaintiff is 504,900 tenge.

Accordingly, for the period from March 06 to June 17, 2025, i.e. for 3 months and 10 days, the amount of wages to be collected will amount to 1,683,000 tenge. As for the claims for recovery of housing payments, in this case, the plaintiff did not provide the court with the relevant evidence and calculations, and the court, based on the evidence provided, was unable to determine the amount of housing payments, respectively, the specified requirement is not subject to satisfaction. Thus, the claim is subject to partial satisfaction.

By virtue of part 2 of Article 243 of the CPC, decisions on reinstatement at work and on awarding wages to an employee are subject to immediate execution, but not more than three months in advance.

According to part 1 of Article 113 of the CPC, which stipulates that, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party.

Based on the principles of good faith, fairness and reasonableness, guided by paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases", the court considers it possible to recover in favor of the plaintiff the costs of paying for the assistance of a representative in the amount of 500,000 tenge.

By virtue of Article 117 of the CPC, the procedural costs of state duty related to the proceedings in the case are to be attributed to the budget.

Guided by articles 223-226 of the CPC, the court

decided:

M.R.K.'s claim is partially satisfied.

To recognize as illegal the order of the Head of the Almaty City Police Department No. 244 dated 03/06/2025 regarding M.R.K..

To reinstate M.R.K. in his former position from March 6, 2025.

To collect from the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" in favor of M.R.K. the salary for the time of forced absenteeism from March 6, 2025 to the day of reinstatement at work in the amount of 1,683,000 (one million six hundred eighty-three thousand) tenge.

To dismiss the rest of the claim.

To collect from the State Institution "Almaty City Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" in favor of M.R.K. the costs of paying for the assistance of a representative in the amount of 500,000 (five hundred thousand) tenge.

The court's decision regarding reinstatement at work and recovery of the average monthly salary for three months in the amount of 1,514,700 (one million five hundred fourteen thousand seven hundred) tenge is subject to immediate execution.

 

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