For committing a disciplinary offense by a civil servant. Disciplinary offense of a civil servant. Reasons for attraction

30.04.2024 Recipes

For what can a state civil servant be brought to disciplinary liability? What is the procedure for bringing disciplinary action?

First of all, it should be noted that relations related to entry into the state civil service of the Russian Federation, its passage and termination, as well as the determination of the legal status (status) of a federal civil servant (hereinafter also referred to as a civil servant) are regulated by the federal law of April 27 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (hereinafter referred to as the Law on Civil Service).

Article 57 of this law provides for disciplinary liability of a civil servant for committing a disciplinary offense, that is, for failure to perform or improper performance by a civil servant through his fault of the official duties assigned to him. The concept of official duties is inextricably linked with job responsibilities defined by the service contract and job regulations of a civil servant.

In total, there are four types of disciplinary sanctions: a reprimand, a reprimand, a warning about incomplete performance, and dismissal from the civil service.

The procedure for applying disciplinary sanctions to civil servants is established by Art. 58 of the Civil Service Law. First of all, the legislator stipulated that disciplinary sanctions are applied immediately after the discovery of a disciplinary offense, but no later than one month from the date of its discovery. This period does not include the period of temporary incapacity for work of a civil servant, his stay on vacation, other cases of his absence from service for valid reasons, as well as the time of conducting an internal audit. A disciplinary sanction cannot be applied to a civil servant later than six months from the date of commission of a disciplinary offense, and based on the results of an inspection of financial and economic activities or an audit - later than two years from the date of commission of a disciplinary offense. The specified time limits do not include the time of criminal proceedings.

Before applying a disciplinary sanction, an official inspection must be carried out, appointed by a representative of the employer, whose powers in the internal affairs bodies of the Russian Federation are determined by Order of the Ministry of Internal Affairs of Russia dated April 27, 2011 No. 335 “On the assignment of certain powers of the employer’s representative to the heads of territorial bodies of the Ministry of Internal Affairs of the Russian Federation” . The right to apply (remove) disciplinary sanctions, order official inspections, monitor the timeliness and correctness of their implementation in relation to civil servants of the territorial body of the Ministry of Internal Affairs of Russia, as well as civil servants of subordinate territorial bodies of the Ministry of Internal Affairs of Russia, is granted to the head of the territorial body at the regional level.

It is important to note that the internal audit must be completed no later than one month from the date of the decision to conduct it, and the Civil Service Law does not provide for an extension of the period for conducting the internal audit.

Part one of Article 58 of the Civil Service Law imposes an obligation on the employer’s representative, before applying a disciplinary sanction, to request an explanation in writing from the civil servant. If a civil servant refuses to give such an explanation, a corresponding act is drawn up. The refusal of a civil servant to give an explanation in writing is not an obstacle to applying a disciplinary sanction.

The results of the internal audit are communicated to the representative of the employer who appointed the internal audit, in the form of a written conclusion signed by the head of the department of the state body on public service and personnel issues, the legal (legal) unit and the elected trade union body of this state body, as well as in the case of their participation by other participants in the official audit. checks.

When applying a disciplinary sanction, the severity of the disciplinary offense committed by a civil servant, the degree of his guilt, the circumstances under which the disciplinary offense was committed, and the previous results of the civil servant performing his official duties are taken into account.

Disciplinary responsibility represents one of the forms of coercion applied by authorized officials (bodies) to persons who have committed a disciplinary offense, and entails adverse consequences for the violator.

Unlike other types of legal liability, disciplinary liability is aimed at ensuring discipline mainly within the framework of official subordination

Disciplinary liability is an independent type of legal liability. It is characterized by the following features:

· the basis for disciplinary liability is a disciplinary offense;

· disciplinary sanctions are applied for such an offense;

· disciplinary liability is applied only in the order of subordination and only to individuals.

There are two types of disciplinary liability:

· general;

· special.

The following specific features of the responsibility of civil servants are highlighted:

· increased responsibility of the employee, since the consequences of an official offense have a negative impact, as a rule, beyond the boundaries of the position;

· the presence of special measures of responsibility for official offenses (demotion, reduction of qualification class, etc.);

· holding an employee accountable for an offense does not exclude the possibility that the same act will be classified as another type of offense and entail appropriate legal liability, for example, the administrative liability of an official for violating safety rules, for which he will also be subject to disciplinary liability.

According to Art. 57 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” the basis for bringing a civil servant to disciplinary liability is the commission of a disciplinary offense.

Disciplinary offense in the sphere of public service legal relations, non-fulfillment or improper fulfillment by a civil servant of the official duties assigned to him through his fault is recognized.

In the science of administrative law, signs have been formulated for quite a long time that can be combined with the concept of the composition of a disciplinary offense. The main elements of a disciplinary offense are:

· object of disciplinary offense;

· objective side of a disciplinary offense;

· subject of disciplinary offense;

· subjective side of a disciplinary offense.

A disciplinary offense has a formal composition, i.e. to bring an employee to disciplinary liability the very fact of violation of labor discipline is sufficient, even if there are no harmful consequences of this violation.

The Federal Law “On the State Civil Service of the Russian Federation” does not require that the employer must impose a penalty on the employee for each disciplinary offense. Taking disciplinary action is a right, not an obligation, of the employer. Therefore, the issue of responsibility must be resolved individually each time.

There is no exhaustive list of disciplinary offenses that can be committed by civil servants. At the same time, the legislation provides for measures against civil servants guilty of violating federal laws, decrees of the President of the Russian Federation, non-execution or improper execution of federal laws, decrees of the President of the Russian Federation and court decisions that have entered into legal force in accordance with the current legislation of the Russian Federation.

In contrast to disciplinary offenses, the list disciplinary sanctions is fully established by law and is not subject to broad interpretation. The legislation on civil service provides for the possibility of imposing disciplinary sanctions on civil servants that are not established by the Labor Code of the Russian Federation. So, in accordance with Part 1 Art. 57 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” The employer's representative has the right to apply the following disciplinary sanctions to civil servants:

· remark;

· reprimand;

· warning about incomplete job compliance;

· exemption from a civil service position;

· dismissal from civil service.

Requirements toprocedure for imposing disciplinary sanctions

For each disciplinary offense, only one disciplinary sanction can be applied.

The application of one or another disciplinary sanction must not only be legal, but also justified. In this regard, in clause 53 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” clarified that the employer must provide evidence indicating not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense, the circumstances under which it was committed, the employee’s previous behavior, and his attitude to work were taken into account .

If, when considering a case for reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

Disciplinary action is applied immediately after the discovery of a disciplinary offense, but no later one month from the date of its discovery, not counting the period of temporary incapacity for work of a civil servant, his stay on vacation, other cases of his absence from service for good reasons, as well as the time of an internal audit.

A copy of the act on the application of a disciplinary sanction to a civil servant, indicating the grounds for its application, is handed over to the civil servant against signature within five days from the date of publication of the relevant act.

A civil servant has the right to appeal a disciplinary sanction in writing to the commission of a state body on official disputes or to court.

If within one year from the date of application of the disciplinary sanction, the civil servant is not subject to a new disciplinary sanction; he is considered to have no disciplinary sanction. The employer's representative has the right to remove a disciplinary sanction from a civil servant before the expiration of one year from the date of application of the disciplinary sanction on his own initiative, at the written request of the civil servant or at the request of his immediate supervisor.

In general, the procedure for bringing civil servants to disciplinary liability is similar to the general procedure established by labor legislation. A special feature is that in a number of cases, civil service legislation requires an internal audit or internal investigation before imposing a disciplinary sanction.

"Personnel department of a budgetary institution", 2009, N 9

Application of disciplinary sanctions to civil servants

For the commission of a disciplinary offense by a civil servant, that is, for failure to perform or improper performance through his fault of the official duties assigned to him, the employer’s representative has the right to apply a disciplinary sanction. This is stated in Art. 57 of Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation” (hereinafter referred to as Law No. 79-FZ) is the main legal act regulating the civil service. What types of disciplinary sanctions are applied to civil servants, in what cases and in what order, we will describe in this article.

Types of disciplinary sanctions

According to Art. 11 of the Labor Code of the Russian Federation for state civil and municipal employees, the effect of labor legislation and other acts containing labor law norms is extended with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of constituent entities of the Russian Federation on state civil and municipal service. Therefore, it is legitimate that the list of types of disciplinary sanctions against civil servants is wider than the list of types of disciplinary sanctions established by the Labor Code of the Russian Federation.

The employer's representative has the right to apply the following types of disciplinary sanctions to a civil servant (Article 57 of Law No. 79-FZ):

Comment;

Rebuke;

Warning about incomplete job compliance;

Release from a civil service position being filled;

Dismissal from the civil service on the grounds established in paragraph 2, paragraphs. "a" - "g" clause 3, clauses 5 and 6, part 1, art. 37 of Law No. 79-FZ.

Attention! For each disciplinary offense, only one disciplinary sanction can be applied (Part 2 of Article 57 of Law No. 79-FZ).

Procedure for applying disciplinary action

According to Art. 58 of Law N 79-FZ, before applying a disciplinary sanction, the employer’s representative must request an explanation in writing from the civil servant. We recommend that you submit a notification of the need to provide an explanation in writing. If an employee refuses to give an explanation, a corresponding act is drawn up, preferably with the signatures of two witnesses from among the employees. An employee's refusal to provide an explanation will not be an obstacle to disciplinary action.

When applying a disciplinary sanction, it is necessary to take into account the severity of the offense committed by the civil servant, the degree of his guilt, the circumstances under which the offense was committed, and the quality of the employee’s performance of his official duties.

Attention! A copy of the act on the application of a disciplinary sanction to a civil servant, indicating the grounds for its application, is handed over to the civil servant against signature within five days from the date of publication of the relevant act (Part 6, Article 58 of Law No. 79-FZ).

A disciplinary sanction can be appealed by a civil servant to the commission of a state body for official disputes or in court.

If within a year from the date of application of a disciplinary sanction a civil servant is not subjected to a new disciplinary action, he is considered not to have had a disciplinary sanction. At the same time, the employer’s representative has the right to remove a disciplinary sanction from a civil servant before the expiration of a year from the date of its application on his own initiative, at the written request of the civil servant or at the request of his immediate supervisor (Parts 8, 9, Article 58 of Law No. 79-FZ).

Attention! When a civil servant is released from a civil service position to be filled due to a disciplinary sanction, he is included in the personnel reserve to fill another civil service position on a competitive basis (Part 10, Article 58 of Law No. 79-FZ).

Day of commission and day of discovery

disciplinary offense

A disciplinary sanction can be applied no later than one month from the date of discovery of the disciplinary offense. The period of incapacity for work of a civil servant, his stay on vacation, his absence from service for other valid reasons, as well as the time of conducting an official audit are excluded from this period. In this case, a disciplinary sanction cannot be applied later than six months from the date of commission of the disciplinary offense, and based on the results of an inspection of financial and economic activities or an audit - later than two years from the date of the commission of the disciplinary offense. The specified time frame does not include the time of criminal proceedings (Parts 4, 5, Article 58 of Law No. 79-FZ). Let us pay special attention to this.

The Ministry of Health and Social Development in Letter dated July 29, 2008 N 2647-17 gives the following explanations on this matter: the day of the commission of a disciplinary offense should be considered the day of its discovery. The day the disciplinary offense was discovered, from which the period for applying the disciplinary sanction is calculated, is considered the day when the immediate supervisor of the civil servant became aware of the offense committed. If the second part of the explanation does not raise questions, then it is impossible to agree with the words that “the day the offense was committed is equivalent to the day it was discovered” due to the literal interpretation of the norm of Parts 4, 5 of Art. 58 of Law No. 79-FZ, especially since Law No. 79-FZ delimits the period of application of a disciplinary sanction relative to the date of commission and the date of discovery of the offense. That is, it is correct to consider the date of commission of a disciplinary offense to be the day when the offense was committed, and the date of discovery to be the day when the immediate supervisor of the civil servant became aware of the commission of the offense.

Service check

Unlike the Labor Code of the Russian Federation, Law No. 79-FZ provides for a mandatory internal inspection before applying a disciplinary sanction (Part 2 of Article 58). During such a check, the following is established:

The fact that a civil servant committed a disciplinary offense;

Guilt of a civil servant;

The reasons and conditions that contributed to the commission of a disciplinary offense by a civil servant;

The nature and extent of harm caused to a civil servant as a result of a disciplinary offense;

The circumstances that served as the basis for a written application by a civil servant to conduct an internal inspection (if it is carried out at the written request of a civil servant - Part 1 of Article 59 of Law No. 79-FZ).

The internal audit is carried out by a division of the state body on issues of civil service and personnel with the participation of the legal (legal) department and the elected trade union body of this state body. A civil servant who is directly or indirectly interested in the results of the audit cannot participate in it. If such a fact occurs, the civil servant is obliged to contact the representative of the employer who appointed the inspection with a written application to exempt him from participating in this inspection. If this requirement is not met, the results of the internal audit are considered invalid (Parts 4, 5, Article 59 of Law No. 79-FZ).

The responsibility to monitor the timeliness and correctness of the internal inspection rests with the representative of the employer who appointed it.

The internal audit must be completed no later than one month from the date of the decision to conduct it. The results of the internal inspection are communicated to the representative of the employer who ordered the internal inspection in the form of a written conclusion (Part 6, Article 59 of Law No. 79-FZ). It states (Part 9, Article 59 of Law No. 79-FZ):

Facts and circumstances established as a result of the internal audit;

A proposal to apply a disciplinary sanction to a civil servant or not to apply a disciplinary sanction to him.

A written conclusion based on the results of the internal inspection is signed by the head of the department of the state body for civil service and personnel issues and other participants in the inspection and is attached to the personal file of the civil servant in respect of whom it was carried out (Part 10, Article 59 of Law No. 79-FZ).

The representative of the employer who appointed the official inspection has the right, for the duration of the inspection, to remove from the position being filled the civil servant in respect of whom this inspection is being carried out. At the same time, the civil servant retains his salary for the position he replaces in the civil service (Part 7, Article 59 of Law No. 79-FZ).

A civil servant subject to an internal audit has the right (Part 8 of Article 59 of Law No. 79-FZ):

Give oral or written explanations, submit statements, petitions and other documents;

Appeal the decisions and actions (inaction) of civil servants conducting an internal inspection before the representative of the employer who ordered the inspection;

Upon completion of the internal inspection, familiarize yourself with the written conclusion and other materials based on the results of the internal inspection, unless this contradicts the requirements of non-disclosure of information constituting state and other secrets protected by federal law.

Attention! The procedure for conducting an internal audit and imposing a disciplinary sanction may be specified by departmental legal acts. For example, in relation to civil servants of the authorities for control over the circulation of narcotic drugs and psychotropic substances, the following applies:

Instructions on the organization of work on conducting official checks in relation to federal state civil servants of bodies for control of the circulation of narcotic drugs and psychotropic substances, approved by Order of the Federal Drug Control Service of Russia dated October 31, 2007 N 365.

K.V. Shestakova

Journal expert

"Human Resources Department

budgetary institution"

Signed for seal

For the commission of a disciplinary offense by a civil servant, that is, for failure to perform or improper performance through his fault of the official duties assigned to him, the employer’s representative has the right to apply a disciplinary sanction. This is stated in Art. 57 of Federal Law N 79-FZ "On the State Civil Service of the Russian Federation" (hereinafter referred to as Law N 79-FZ) - the main legal act regulating the civil service. What types of disciplinary sanctions are applied to civil servants, in what cases and in what order, we will describe in this article.

Types of disciplinary sanctions

The employer's representative has the right to apply the following types of disciplinary sanctions to a civil servant (Article 57 of Law No. 79-FZ):

Comment;
- reprimand;
- warning about incomplete job compliance;
- release from the civil service position being filled;
- dismissal from the civil service on the grounds established in paragraph 2, paragraphs. "a" - "g" clause 3, clauses 5 and 6, part 1, art. 37 of Law No. 79-FZ.

For each disciplinary offense, only one disciplinary sanction can be applied (Part 2 of Article 57 of Law No. 79-FZ).

Procedure for applying disciplinary action

A disciplinary sanction can be appealed by a civil servant to the commission of a state body for official disputes or in court.

The day the disciplinary offense was committed and the day it was discovered

The Ministry of Health and Social Development in Letter N 2647-17 gives the following explanations on this matter: the day of the commission of a disciplinary offense should be considered the day of its discovery. The day the disciplinary offense was discovered, from which the period for applying the disciplinary sanction is calculated, is considered the day when the immediate supervisor of the civil servant became aware of the offense committed. If the second part of the explanation does not raise questions, then it is impossible to agree with the words that “the day the offense was committed is equivalent to the day it was discovered” due to the literal interpretation of the norm of Parts 4, 5 of Art. 58 of Law No. 79-FZ, especially since Law No. 79-FZ delimits the period of application of a disciplinary sanction relative to the date of commission and the date of discovery of the offense. That is, it is correct to consider the date of commission of a disciplinary offense to be the day when the offense was committed, and the date of discovery to be the day when the immediate supervisor of the civil servant became aware of the commission of the offense.

Service check

Unlike the Labor Code of the Russian Federation, Law No. 79-FZ provides for a mandatory internal inspection before applying a disciplinary sanction (Part 2 of Article 58).

During such a check, the following is established:

The fact that a civil servant committed a disciplinary offense;
- the guilt of a civil servant;
- the reasons and conditions that contributed to the commission of a disciplinary offense by a civil servant;
- the nature and extent of harm caused to a civil servant as a result of a disciplinary offense;
- the circumstances that served as the basis for a written application by a civil servant to conduct an internal audit (if it is carried out at the written request of a civil servant - Part 1 of Article 59 of Law No. 79-FZ).

The responsibility to monitor the timeliness and correctness of the internal inspection rests with the representative of the employer who appointed it.

The internal audit must be completed no later than one month from the date of the decision to conduct it.

The results of the internal inspection are communicated to the representative of the employer who ordered the internal inspection in the form of a written conclusion (Part 6, Article 59 of Law No. 79-FZ).

It states (Part 9, Article 59 of Law No. 79-FZ):

Facts and circumstances established as a result of the internal audit;
- a proposal to apply a disciplinary sanction to a civil servant or not to apply a disciplinary sanction to him.

A civil servant subject to an internal audit has the right (Part 8 of Article 59 of Law No. 79-FZ):

Give oral or written explanations, submit statements, petitions and other documents;
- appeal the decisions and actions (inaction) of civil servants conducting an internal inspection before the representative of the employer who ordered the inspection;
- at the end of the internal inspection, get acquainted with the written conclusion and other materials based on the results of the internal inspection, if this does not contradict the requirements of non-disclosure of information constituting state and other secrets protected by federal law.

The procedure for conducting an internal audit and imposing a disciplinary sanction may be specified by departmental legal acts.

For example, in relation to civil servants of the authorities for control over the circulation of narcotic drugs and psychotropic substances, the following applies:

Instructions for organizing work on the application of incentives and disciplinary sanctions in the authorities for control over the circulation of narcotic drugs and psychotropic substances, approved by Order of the Federal Drug Control Service of Russia N 424;
- Instructions on the organization of work on conducting official checks in relation to federal state civil servants of bodies for control of the circulation of narcotic drugs and psychotropic substances, approved by Order of the Federal Drug Control Service of Russia N 365.

Disciplinary liability is characterized by failure to fulfill official duties by a state civil servant. It is regulated by Art. 57 Federal Law “On the State Civil Service of the Russian Federation”, as well as 192 Art. of the Labor Code of the Russian Federation, described.

Types of disciplinary liability of state civil servants

Disciplinary liability includes the most common type of penalty - a reprimand (and even a corresponding order can be issued for it). This includes:

violation of labor regulations,
failure of civil servants to perform their labor functions.

A reprimand is one of the grounds for dismissing an unscrupulous employee. This is a severe penalty and the first step towards dismissal. This is a warning about incomplete official compliance (although it can also be challenged and an order to remove the disciplinary sanction be issued: sample).

The fundamental term is “suitability for the position held”; its criteria include:

high level of knowledge of their official duties and their proper performance,
initiative,
organization and a number of other positive qualities among colleagues,
leadership ability,
high self-criticism and dedication,
the state of health must correspond to the position held.

A special type of disciplinary sanction is dismissal from the state civil service (or removal from duties for a certain period: details of the duration of such a sanction). This includes:

failure by an employee to fulfill his official duties without good reason;
a gross violation committed by an employee;
absence from work for more than 4 hours without valid reasons;
performing official duties while intoxicated;
disclosure of information related to state secrets;
committing theft at the place of work.

Grounds for disciplinary action

The employer, guided by Art. 192 of the Labor Code of the Russian Federation has the right to hold the violator accountable for an oversight, if the employee fails to fulfill his official duties without good reason.

To avoid this, you must strictly adhere to your job responsibilities and not violate your work schedule. All this is spelled out in the employee’s employment contract, so duties not specified in the document, but required by the boss, can be challenged.

Violations include: absence from the workplace without good reason, violation of an internal order of the manager. The corresponding types of disciplinary sanctions are given.

Statute of limitations for bringing disciplinary action

When imposing punishment, the employer is obliged to comply with the deadlines prescribed in the Labor Code. Cancellation of the applied measures occurs if the deadlines for bringing to justice are violated.

A misdemeanor can be punished within 1 month (from the date the misdemeanor was discovered) and no later than six months from the date of its commission.

Violations identified as a result of an audit or inspection have their own statute of limitations for bringing the guilty person to punishment. In this case, the period is 2 years.

These periods cannot include:

vacation,
sick leave,
deadline for making a decision based on the inspection materials.

The employee’s disagreement with the charges leaves him the right to go to court or the labor inspectorate. But we must not forget about the statute of limitations for bringing an employee to punishment. It should be remembered that it is impossible to punish several times and issue several orders for one offense - this is a violation of the Labor Code of the Russian Federation.

Procedure for bringing to responsibility

The first thing a manager must do in accordance with Art. 193 of the Labor Code - require the violator to provide a written explanation of the offense. Basically, the perpetrator refuses this practice, but this does not exempt him from the committed act. It is possible to bring a person to justice based on the materials of an internal audit within one month from the date of establishment of the fact of a disciplinary offense and no later than six months from the date of its commission. After checking and establishing a violation, the employer signs a decree according to which the violator is reprimanded, reprimanded, or immediately dismissed when it comes to committing a particularly serious offense.

The guilty person is familiarized with the order on disciplinary action against signature within 3 days from the date of its approval. If the violator refuses to sign the order, this does not exempt him from punishment, since at the time of familiarization there are witnesses who are ready to confirm the correctness of the procedure in court if the defendant decides to file a complaint against the boss for illegal dismissal.

Administrative and disciplinary responsibility of a civil servant - differences

A state civil servant, like a citizen, is responsible before the law for acts of an administrative nature. Punishments for offenses of this nature are prescribed in the Code of Administrative Offenses of the Russian Federation. Also in the Code of Administrative Offenses there is Article 2.4 provided for civil servants who have committed an administrative violation. The law strictly distinguishes between administrative and disciplinary liability.

Let's look at their differences:

A civil servant is subject to disciplinary punishment in the order of official subordination, execution is carried out by the executive branch appointed by the President of the Russian Federation or the courts;
Administrative liability has slightly different measures of influence on the violator than disciplinary: warning, suppression, punishment.

Administrative responsibility extends not only to officials and citizens, but also to institutions, organizations and enterprises.