BIR Ruling [DA-004-00]

January 5, 2000 BIR RULING [DA-004-00] Mr . President N . Canasa OIC-Head, HRMU Revenue Region No. 1 Calasiao, Pangasinan S i r : This refers to your letter dated October 2, 1998 which was referred to this Office by the Chief, Personnel Inquiry Division by way of 2nd Indorsement dated June 1, 1999 requesting, in effect, for a ruling as to whether or not the reckoning date of the resumption of payment of the salary of Mr. Andrew A. Aberin (Mr. Aberin), should be on November 26, 1996, when the latter reported back for duty or on August 20, 1998, when the suspension order was finally lifted by the Commissioner of Internal Revenue. It is represented that Mr. Aberin, is an Assistant Revenue Officer I of Revenue District Office No. 3, San Fernando City, La Union; that on June 30, 1996, Mr. Aberin was preventively suspended for ninety (90) days by virtue of an Administrative Case filed against him for Grave Misconduct and Dishonesty; that Mr. Aberin's salaries and PERA were deleted from the regional payroll as of such date; that on November 26, 1996, after serving the ninety (90) day preventive suspension, Mr. Aberin reported back for duty not withstanding the fact that the suspension order has not yet been lifted by the Commissioner of Internal Revenue; that in a Certification duly issued by the Chief Personnel Inquiry Division dated November 18, 1998, considering that no delay was attributable to the respondent in the disposition of the said Administrative Case for Grave Misconduct and Dishonesty, the salaries due to the said respondent may be resumed after the lifting of the preventive suspension, effective August 20, 1998 provided, however, the respondent has shown proof that he has already reported back for work, to which Mr. Aberin issued a letter to the Revenue District Officer of Revenue District No. 3, San Fernando, La Union informing the said Office that he has reported for duty as of November 26, 1996; and that on August 20, 1998, the ninety (90) days preventive suspension which took effect on June 30, 1996 was finally lifted by the Commissioner of Internal Revenue. In reply, please be informed that Sec. 27, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292, which states as follows: "Sec. 27. When the administrative case against a non-presidential officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of his preventive suspension, he shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay should not be included in the counting of the ninety (90) calendar day-period of preventive suspension." Corollarily, in the case entitled "Vivian Canonigo-Hayashi, Plaintiff, vs. Hon. Liwayway Vinzons-Chato, Commissioner of Internal Revenue, Dir. Ammadul D. Sarappudin, Atty. Roemo L. Dublin, Atty. Asuncion, Bernades and RDO Alfredo Misahon, Respondents", docketed as Civil Case No CEB-18196, Judge Rodolfo Gandionco, RTC, Branch 16, Cebu City, issued an Order dated April 17, 1996 with respect to the 90 day preventive suspension against the Plaintiff, to wit: "With respect to the 90 day preventive suspension against plaintiff, this Court is of the opinion that the same has become moot and academic because it has been fully served by the Plaintiff. The preventive suspension was served to the Plaintiff on December 6, 1995 and since no TRO was issued, the period of suspension begun to run from December 6, 1995 and expired on March 6, 1996. Even assuming arguendo that the running of period of suspension was stopped because of the TRO issued by this Court on the administrative hearing against the employee under preventive suspension again begun to run and expired on March 26, 1996. Section 52 of Executive Order No. 292 provides that when the administrative case against the employee under preventive suspension is not fully decided by the disciplining authority within the period of 90 days after the date of suspension of the respondent , the respondent is automatically reinstated in the service. The exception that when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay is not being counted in computing the period of suspension, is not applicable to the factual circumstances of the case at bench . . . Based on the foregoing, it is the opinion of this Office that the reckoning date for the resumption of the salary of Mr. Aberin should be on November 26, 1996, the date when he reported back for duty and after the 90-day expired, notwithstanding the absence of the order lifting the said preventive suspension by the Commissioner of Internal Revenue, since Mr. Aberin in this case is deemed automatically reinstated after serving the said preventive suspension on the ground that there was no delay in the disposition of the case which is directly attributable to Mr. Aberin. (BIR Ruling No. 142-97 dated December 29, 1997) This ruling is being issued on the basis of the foregoing facts as represented. However, if upon investigation, it will be disclosed that the facts are different,. then this ruling shall be considered null and void. Very truly yours, (SGD.) BEETHOVEN L. RUALO Commissioner of Internal Revenue