BIR Ruling [DA-512-98]

November 19, 1998 BIR RULING [DA-512-98] Mr. Flaviano Y. Madrid Bureau of Internal Revenue Revenue District No. 15 Ilagan, Isabela S i r : This refers to your letter dated January 21, 1998, which was referred to this Office by the Chief, Personnel Inquiry Division, requesting that you be reinstated to the service, included into the payroll and paid all back-wages and other benefits due to you from November 11, 1996 up to the present in view of BIR Ruling No. 142-97 dated December 29, 1997. cdll It appears that on August 12, 1996, you received the Formal Charge and Preventive Suspension Order and consequently served the 90-day preventive suspension from August 13, 1996 to November 10, 1996; that on November 11, 1996, you reported back for duty informing both the Personnel and Accounting Divisions of the same, in order to cause your inclusion into the regular payroll; that you waited for more than four (4) months for your back salaries, only to receive a frustrating reply from the Asst. Commissioner for Human Resource Development Service dated January 23, 1997 wherein it is stated that the Chief, Personnel Inquiry Division ascertained that an employee who has completed the ninety (90) days period of preventive suspension can only report back to duty if there is a lifting of the Order of Suspension signed by the Commissioner and reinstatement to former position or assignment should be prepared in the National Office; that you stopped reporting for work and your Daily Time Record (DTR) from March 8, 1997 to the present, shows that you are under indefinite suspension; and that you have exerted all efforts to request for a lifting order invoking even a letter from the Director of the Civil Service Commission, Region II, Tuguegarao, Cagayan, upholding the provision of E.O. 292, but no favorable action has been taken. In reply, please be informed that Section 27, Rule XIV of the Omnibus Rules implementing Book V of Executive Order No. 292, reads as follows: "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." Corollary thereto, 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 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 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 20-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 in the actual circumstances of the case at bench. . ." Based on the foregoing, this Office is of the opinion as it hereby holds that you should be reinstated in the Service, included in the payroll and paid your salary including other benefits due you after serving the 90-day preventive suspension pursuant to Section 27, Rule XIV of the Omnibus Rules implementing Book V of Executive Order No. 292. (BIR Ruling No. 142-97 dated December 29, 1997) LLjur 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.) SIXTO S. ESQUIVIAS IV Deputy Commissioner (Legal & Enforcement Group)