DOJ Opinion No. 030, s. 1987

DOJ OPINION NO. 030 , s. 1987 March 19, 1987 Hon. Bienvenido A. Tan, Jr. Commissioner, Bureau of Internal Revenue Quezon City Sir : This refers to your request for opinion on "whether or nor the period of 90-day preventive suspension could be counted in the computation of penalty/ties imposed upon a respondent in an administrative case." Your request for opinion was precipitated by the resolution of the Civil Service Commission in the case of Franco Espina dated March 29, 1985 which you claim to have departed from the ruling of the Supreme Court in the case of Yarcia vs. City of Baguio, et al., 33 SCRA 419 (1970) which states: "2. The applicable doctrine where the employee has not been exonerated or found innocent of the charge of his suspension or removal from office pending appeal is lawful and not unjustified, as in the present case, is stated in Villamor vs. Lacson. In that case Villamor and his co-petitioners were found guilty of the administrative charge and required to tender their resignations within 72 hours from receipt of the Mayor's decision. In Villamor's appeal to the Office of the President, the said office found him and his co-respondents guilty of the charge and affirmed the decision with the modification that the suspension of over one year . . . already suffered by respondents be considered sufficient punishment" and ordered their reinstatement. Resolving exactly the same question now raised by petitioner, the court held that (t)he fact that the Office of the President modified the decision from dismissal to a mere separation for one (1) year, five (5) months, and nine (9) days, did not bring the punishment within the purview of a preventive suspension which should be governed by Sec. 695 of the Revised Administrative Code. The fallacy of petitioners' argument springs from their assumption that the modified decision had converted the penalty to that of suspension. The modified decision connotes that although dismissal or resignation would be proper penalty, the separation from work for the period until their reinstatement, would be deemed insufficient. Said decision did not, in the least, insinuate that suspension should have been a penalty." prcd The Court added that "it will be noted also that the modified decision did not exonerate the petitioners. And if we take into account the fact that they did not work during the period for which they are now claiming salaries, there can be no legal or equitable basis to order the payment of their salaries. The general proposition is that a public official is not entitled to any compensation if he has not rendered any service. And even if We consider the punishment as suspension, before a public official or employee is entitled to payment of salaries withheld, it should be shown that the suspension was unjustified or that the employee was innocent of the charges preferred against him. (F.D. Reyes vs. J. Hernandez, 71 Phil. 397), which is not the case in the instant proceedings.'" The Civil Service Commission, in the case of Franco Espina, ruled: "The Commission had ruled in several occasions that preventive suspension is a mere precautionary measure, is not a part of the penalty of suspension imposed upon a respondent. Nevertheless, there is a need to re-examine this ruling to conform with the present policy of the Commission to adopt positive aspect of discipline, and not its punitive nature. To maintain the old ruling would be stressing the punitive aspect of administrative discipline considering that preventive suspension would have the effect of penalizing the respondent during the pendency of the case, notwithstanding fact also that the respondent is deprived of the salary during the period of preventive suspension. In fact, even is a criminal case the preventive imprisonment or detention undergone by the offender has, except for special cases, been credited in the services of his sentence (article 29, Revised Penal Code). Moreover, there is no provision in the Civil Service Law or rules which expressly requires that the period of preventive suspension imposed should not be included in the imposition of the penalty suspension." A careful examination of the CSC Resolution in the Espina case shows that it is not in conflict with the Yarcia case. In the CSC Resolution, the period of preventive suspension which the respondent in the administrative case has to serve shall be deducted from the penalty of suspension. On the other hand, in the Yarcia case citing Villamor vs. Lacson, 12 SCRA 418, it was ruled that ". . . with the modification that the suspension of over one year . . . already suffered by the respondents be considered sufficient punishment . . .." With respect to respondent's salary during the period of his preventive suspension, he is not entitled thereto if he is not completely exonerated of the case against him. We note that the Civil Service Commission, as the central personnel agency to set standards and to enforce the laws and rules governing discipline of civil servants (Sec. 2, P.D. 807), has acted within its power in promulgating its ruling in the Espina case. Well-accepted is the rule that contemporaneous interpretations of a statute by the agency tasked with its implementation and enforcement is entitle to great respect and deference (Pascual vs. Director of Lands, 10 SCRA 854; Asturias Sugar Central Inc. vs. Commissioner of Customs, 29 SCRA 617.) Moreover, by policy and precedents, this Ministry has consistently refrained from passing upon the legal propriety of circulars and issuances of other offices and agencies (Secretary of Justice Ops. No. 56, s. 1972; No. 63, s. 1977), as well as the rulings of the office or agency which is tasked with the enforcement of the law involved (DOJ Ops. No. 145 s. 1973; No. 245, s. 1976 and No. 14, s. 1977) especially in instances where the issuance or ruling is promulgated by an independent constitutional commission, such as the Civil Service Commission, over which this Ministry has no revisory authority (DOJ Ops. No. 203, s. 1961; No. 181, s. 1976; and No. 22, s. 1977). prcd Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice