On the recognition of actions to make recommendations in the report on the results of the internal audit on taking measures to compensate unnecessarily
No.6001-22-00-6ap/1357 dated 12.01.2023
Plaintiff: B.K.
Respondent: State Institution "Ministry of Information and Public Development of the Republic of Kazakhstan"
The subject of the dispute is the recognition of actions to make recommendations in the report on the results of the internal audit on taking measures to reimburse excessively and unreasonably paid wages, additional payments and other payments and decisions to eliminate violations, to consider recommendations on taking measures to eliminate financial violations indicated in the report on the results of the internal audit, illegal.
Review of the plaintiff's cassation complaint PLOT:
On November 9, 2021, an audit was conducted at the Kogamdyk Kelisim State University of the Ministry of Information and Public Development of the Republic of Kazakhstan (hereinafter referred to as the Institution).
During the audit, violations of subitems 2), 3) of paragraph 2 of Article 111 of the Labor Code of the Republic were established. Kazakhstan due to
unjustified accrual to the chief accountant of the Accounting Department of surcharges for the expansion of the service area in the total amount of 678,200 tenge and overpayment of vacation pay.
The institution is recommended to take measures to reimburse unnecessarily and unreasonably paid salaries, surcharges and other payments totaling 1,310.5 thousand tenge and transfer them to the national budget revenue by December 31, 2021.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision is overturned, the claim is returned.
Cassation: the ruling is upheld.
Conclusions:
In satisfying the claim, the court of first instance reasoned its conclusions by saying that according to the report on the results of the internal audit and the decision to eliminate violations, the Institution is obliged to take measures to reimburse the republican budget for excessively and unreasonably paid wages and other payments, including in respect of the plaintiff. Thus, the disputed actions directly affect the interests of the plaintiff, and the disputed acts are burdensome for the plaintiff.
The court of appeal did not agree with the conclusions of the court of first instance, returned the claim, arguing that the conclusions and recommendations of the audit disputed by the plaintiff, reflected in the report, are not administrative acts, and therefore are not subject to consideration in administrative proceedings.
Since the Institution, as the employer, did not take any measures against the plaintiff to refund the unjustifiably paid money, including by suing the court to ensure reimbursement to the budget, and the defendant did not take any administrative act implementing her rights and obligations against the plaintiff, the court of appeal reasonably returned the claim is based on subparagraph 11) of the second part of Article 138 of the CPC, since the case is not subject to consideration in administrative proceedings.
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