DOJ Opinion No. 087, s. 1987

DOJ OPINION NO. 087 , s. 1987 August 28, 1987 Commissioner Bienvenido A. Tan, Jr. Bureau of Internal Revenue BIR Road, Quezon City Sir : This is with reference to your request for opinion on whether or not an employee who was convicted by the court but placed under probation and, later discharged therefrom, is entitled to receive retirement benefits. The within papers disclose that on September 28, 1981, Mr. Timoteo Oporto, then Supervising Revenue Inspector of your Bureaus Branch Office in Cebu City, was found by the Sandiganbayan in Criminal Case No. 2327 guilty beyond reasonable doubt of Violation of Section 3(b) and (e) of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019, as amended), and was sentenced to "an indeterminate penalty of imprisonment ranging from TWO (2) YEARS as minimum to FOUR (4) YEARS as maximum, to suffer perpetual disqualification from public office, to pay the costs and to indemnify Francisco Yap, Assistant Manager of Olympian Commercial Company, in the sum of P50.00". On January 28, 1982, the same Court issued a Resolution ordering the suspension of the execution of sentence of Mr. Oporto and ordered him placed on probation for a period of four (4) years from date of Resolution subject to the conditions specified therein. LexLib Based on the Termination Report of the Probation Office of Cebu to the effect that Mr. Oporto had sufficiently complied with all the terms and conditions imposed in the Order placing him under probation, the Regional Trial Court of Cebu (Branch XIV-Cebu City) issued an Order dated August 15, 1986, pertinent portion of which states: "WHEREFORE, as prayed for, let the aforenamed probationer be, as he is hereby finally discharged from probation and that whatever civil rights which may have been lost or suspended as a consequence of conviction, are hereby fully restored". Mr. Oporto died on September 18, 1986. His widow is now claiming retirement benefits due him from the government. Hence, your query. The resolution of the query would involve a consideration of the following provisions of laws: Section 13, R.A. No. 3019, as amended (The Anti-Graft and Corrupt Practices Act) "SEC. 13. Suspension and loss of benefits . Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon the government or public funds or property . . . is pending in court, shall be suspended from office. Should he be convicted by final judgment he shall lose all retirement or gratuity benefits under any law , but if he is acquitted, he shall be entitled to reins statement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. . . .". (Emphasis supplied) Sections 4 and 16, P.D. 968, as amended (The Probation Law) "SEC. 4. Grant of Probation . Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best : Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment or conviction. . . .". (Emphasis supplied) "SEC. 16. Termination of Probations . xxx xxx xxx The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the Offense for which probation was granted. . . .". (Emphasis supplied) While under Section 13 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended), a public officer convicted by final judgment "shall lose all retirement or gratuity benefits under any law", the execution of the sentence in case the accused is placed under probation, is suspended (Sec. 4, P.D. No. 968), and upon his final discharge from probation, all his civil rights lost or suspended as a result of his conviction shall be restored (Sec. 16, id.) In the case of the late Mr. Oporto, his judgment of conviction sentenced him to a prison term of two to four years, with perpetual disqualification to hold public office. By operation of law, he would also lose all retirement and gratuity benefits under any law (Sec. 13, R.A. No. 3019, as amended). However, the execution of his sentence was suspended and he was placed under probation. On August 15, 1986, he was finally discharged from probation upon compliance with all the terms and conditions of his probation. By order of the court, and pursuant to law (Sec. 16, P.D. No. 968, as amended), "whatever civil rights which may have been lost or suspended as a consequence of conviction are . . . fully restored" to him. prcd It may be true that by reason of his conviction by final judgment, Mr. Oporto was deemed to have lost his retirement/gratuity benefits under the law. But his final discharge from probation had the effect of restoring "all civil rights lost or suspended as a result of his convictions, and so, he should be deemed entitled to payment of his retirement benefits. Civil rights are broadly defined as those non-political rights guaranteed to an individual under the fundamental law (Webster Illustrated Contemporary Dictionary Encyclopedia Section). The right to life, liberty and property is one of them. The employees right to retirement/gratuity benefit is undoubtedly an aspect of this basic civil right, which is deemed restored upon the final discharge of a probationer from probation. In view of all the foregoing, it is our opinion that the heirs of Mr. Oporto may be paid his retirement benefits in the light of Section 16 of the Probation Law (P.D. No. 968, as amended). This is upon the assumption that (1) Mr. Oporto was qualified to retire from the service as of the date of his suspension from office on June 18, 1981, and (2) no administrative charge had been filed against Mr. Oporto wherein he was meted the penalty of dismissal from the service. While it may be said that his right to retirement benefits, which he lost upon his conviction by final judgment in his criminal case before the Sandiganbayan, was restored upon his final discharge from probation, the restoration was not retroactive and the period during which he was out of the service, that is, from June 18, 1981, the date of his suspension, up to August 15, 1986, the date of his final discharge from probation, should not be tacked to his number of years of government service for purposes of availment of retirement benefits. On the other hand, if he had been charged administratively and was subsequently penalized with dismissal from the service, he would lose his retirement benefits as a consequence of such dismissal because forfeiture of retirement benefits is an administrative disability inherent in the penalty of dismissal. prcd Please be guided accordingly. Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice