DOJ Opinion No. 167, s. 1980

DOJ OPINION NO. 167 , s. 1980 November 21, 1980 The Commissioner Bureau of Internal Revenue Quezon City Sir : This refers to your request for opinion on whether or not Manuel de Castro, former Examiner II, Bureau of Internal Revenue (BIR), who was "considered resigned" from the BIR as of November 7, 1979, is entitled to retirement benefits under P.D. No. 1146. llcd Subject to the extended discussion hereunder, the query is answered in the affirmative. We are informed that Mr. Manuel de Castro was a respondent in an administrative case for grave misconduct in office for which he was formally investigated; that on October 2, 1979, before the said administrative case could be resolved, he submitted his courtesy resignation to the Commissioner of Internal Revenue "in order to give the President a free hand in choosing the revenue officials who will administer and run the affairs of this Bureau", with the request that he be allowed to enjoy the employee benefits to which he would be entitled under existing laws; and that he was "considered resigned" by virtue of the letter of then Acting BIR Commissioner Efren I. Plana dated November 7, 1979, which letter did not specify that the separation was for cause and was silent as to whether Mr. de Castro would be entitled to retirement benefits. Section 4 of P.D. No. 1146 (the Revised Government Service Insurance Act of 1977, which took effect in 1977) contains a new provision not found in the Retirement Law (Commonwealth Act No. 186, as amended) before its amendment by P.D. No. 1146, to wit: "Section 4. Effect of Separation from the Service . A member shall continue to be a member, notwithstanding his separation from the service and, unless the terms of his separation provide otherwise he shall be entitled to whatever benefits which shall have accrued or been earned at the time of his separation in the event of any contingency compensable under this Act. On the assumption that the letter of the BIR to Mr. de Castro considering him resigned does not state that he shall not be entitled to retirement benefits and applying section 4, supra , our conclusion is that he may receive the retirement benefits to which he ought to be entitled under the law. Furthermore, the ruling in Pablo R. Aquino vs. GSIS, 22 SCRA 415 (1968), is not applicable to the present case. In said case, Aquino was charged in an administrative complaint with dishonesty through misrepresentation of his educational attainment, and the Investigating Committee, based on a finding that the charge was well-grounded, recommended that respondent " be considered resigned " without prejudice to the receipt by him of retirement benefits to which he may be entitled. The Supreme Court, in holding that Aquino was not entitled to retirement benefits, stated: "On the first issue, no doubt can be entertained that petitioner was, to all intents and purposes, dismissed from the service. Despite the weaseling expression 'considered resigned', probably invented by some official superior unwilling to face realities, the fact remains that Aquino was separated from the service against his will, and that can be nothing else but a dismissal. . . . "Hence, even if the misrepresentation committed in the information sheets (Exhs. F and G) were to be disregarded, there is still reason to consider petitioner as dismissed from the service for cause. That the enjoyment of retirement benefits under the Government Service Insurance System are conditioned upon a retiree's satisfactory service is not contested. "Anent the second issue, the consequences of dismissal or involuntary separation from service for cause are governed exclusively by the laws applicable. The offices or entities where service was rendered are powerless to affect such consequences, which are not dependent upon the discretion of the officials heading the particular office or entity. It follows that the resolution considering Aquino resigned, insofar as it provides that it shall be deemed 'without prejudice to whatever retirements benefits he may be entitled' can not preserve for him such benefits if under the law he has no right thereto; the CLAC being powerless to condone malfeasance or misbehavior in office." On the other hand, in the present case, there was no finding that Mr. de Castro was guilty of the acts charged; neither the administrative case for grave misconduct nor the criminal case filed before the City Fiscal of Manila had been decided when he submitted his courtesy resignation. Therefore, it cannot be said that Mr. de Castro's separation from the service was involuntary and for cause. Wherefore, we reiterate the reply hereinabove given. Very truly yours, For the Minister of Justice: (SGD.) JESUS N. BORROMEO Deputy Minister