BIR Ruling [DA-065-98]

February 25, 1998 BIR RULING [DA-065-98] Director Marcelino M. Ramos Revenue Region No. 3 Tuguegarao, Cagayan S i r : This refers to your letter dated February 5, 1998, relative to the claim of Mr. Dominador C. Maraa, Jr. for backwages from March 5, 1996 to November 30, 1997. It appears that Mr. Maraa was charged for Grave Misconduct and Dishonesty resulting to his 90-day preventive suspension; that he reported back for work on March 5, 1996 up to July 16, 1997; that, however, on October 9, 1996, a letter from the Assistant Commissioner, Human Resources Development Service was received by Mr. Maraa to the effect that he cannot report back for work unless there is a lifting of the Order of suspension and a directive that he can report back for work; that despite the Order, he continued to report for work up to July 16, 1997; that a decision dated July 11, 1997, was handed down in his case, which was received by him on July 27, 1997, imposing a penalty of three (3) months suspension without pay; that he served the said penalty from July 27 to October 14, 1997; and that on October 15, 1997, Mr. Maraa reported for work and for which he is now receiving his salary. Based on the foregoing representations and documents submitted, you are now requesting clarification as to whether Mr. Maraa is entitled to receive his claimed backwages for the period from March 5, 1996 to July 16, 1997 and whether or not he is also entitled to other benefits accruing during the said period. cDCSET In reply, please be informed that Sec. 27, Rule XIV of the Omnibus Rules implementing Book V of Executive Order No. 292 provides, viz: "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." Moreover, in the case entitled "Vivian Canonigo-Hayashi, Plaintiff, vs. Hon. Liwayway Vinzons-Chato, Commissioner of Internal Revenue, Dir. Ammadul D. Sarappudin, Atty. Romeo L. Dublin, Atty. Asuncion Bernades and RDO Alfredo Misahon, Respondents" docketed as Civil Case No. CEB-18196, Judge 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 the 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 the period of suspension was stopped because of the TRO issued by this Court on the administrative hearing against the Plaintiff, the 90-day period of the TRO expired on January 16, 1996 and therefore even assuming arguendo that TRO suspended the running of the period of suspension, and since the TRO expired on January 16, 1996, the period of suspension again began 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 finally 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. . . . " ICAcTa Based on the foregoing representations and documents submitted, this Office is of the opinion that Mr. Dominador C. Maraa, Jr. is entitled to receive his claimed backwages for the period from March 5, 1996 to July 16, 1997, including the other benefits accruing thereto during the period, there being no fault or negligence on the part of herein respondent showing to have caused the resulting delay in arriving at the decision on his case, plus the fact that he had already served his 90-day preventive suspension from July 27 to October 14, 1997. (BIR Ruling No. 142-97 dated December 29, 1997) Very truly yours, (SGD.) SIXTO S. ESQUIVIAS IV Deputy Commissioner (Legal and Enforcement Group)