BIENVENIDO NERA, PETITIONER AND APPELLEE, VS. PAULINO GARCIA, SECRETARY OF HEALTH, AND TRANQUILINO ELICAÑO, DIRECTOR OF HOSPITALS, RESPONDENTS AND APPELLANTS.

Respondents are appealing the decision of the Court of First
Instance of Manila, dated October 30, 1957, ordering them to reinstate
petitioner Bienvenido Nera to his former position as clerk in the
Maternity and Children’s Hospital, and to pay him his back salary from
the date of his suspension until reinstatement.

The facts in this case are not in dispute. Petitioner Nera a civil
service eligible, was at the time of his suspension, serving as clerk
in the Maternity and Children’s Hospital, a government institution
under the supervision of the Bureau of Hospitals and the Department of
Health. In the course of his employment, he served as manager and
cashier of the Maternity Employee’s Cooperative Association, Inc. As
such manager and cashier, he was supposed to have under his control
funds of the association. On May 11, 1956, he was charged before the
Court of First Instance of Manila with malversation, Criminal Case No.
35447, for allegedly misappropriating the sum of P12,636.21 belonging
to the association.

Some months after the filing of the criminal case, one Simplicio
Balcos, husband of the suspended administrative officer and cashier of
the Maternity and Children’s Hospital, named Gregoria Balcos, filed an
administrative complaint against petitioner Nera, on the basis of the
criminal case then pending against him. Acting upon this administrative
complaint and on the basis of the information filed in the criminal
case, as well as the report of the General Auditing Office to the
effect that as a result of its examination of the accounts of Nera as
manager and cashier of the association, he was liable in the amount of
P12,636.21, the executive officer, Antonio Rodriguez, acting for and in
the absence of the Director of Hospitals, required petitioner to
explain within seventy-two hours from receipt of the communication,
Exhibit D, why he should not be summarily dismissed from the service
for acts involving dishonesty. This period of seventy-two hours was
extended to December 20, 1956. Before the expiration of the period as
extended, that is, on December 19, 1956, Nera received a communication
from respondent Director of Hospital suspending him from office as
clerk of the Maternity and Children’s Hospital, effective upon receipt
thereof. This suspension carried the approval of respondent Garcia,
Secretary of Health.

The petitioner asked the PCAC to intervene on his behalf, which
office recommended to respondents the lifting of the suspension of
petitioner. Upon failure of respondents to follow said recommendation,
petitioner asked respondents for a reconsideration of his suspension,
which request was denied. Petitioner then filed the, present special
civil action of prohibition, certiorari and mandamus to restrain
respondents from proceeding with the administrative case against him
until after the termination of the criminal case; to annul the order of
suspension dated December 19, 1956, and to compel respondents to lift
the suspension. After hearing of this special civil action, the
appealed decision was rendered. The trial court held that petitioner
was illegally suspended, first because the suspension came before he
was able to file his answer to the administrative complaint, thereby
depriving him “of his right to a fair hearing and an opportunity to
present his defense, thus violating the due process clause”; also, that
assuming for a moment that petitioner were guilty of malversation or
misappropriation of the funds of the association, nevertheless, said
irregularity had no connection with his duty as clerk of the Maternity
and Children’s Hospital.

In connection with the suspension of petitioner before he could file
his answer to the administrative complaint, suffice it to say that the
suspension was not a punishment or penalty for the acts of dishonesty
and misconduct in office, but only as a preventive measure. Suspension
is a preliminary step in an administrative investigation. If after such
investigation, the charges are established and the person investigated
is found guilty of acts warranting his removal, then he is removed or
dismissed. This is the penalty. There is, therefore, nothing improper
in suspending an officer pending his investigation and before the
charges against him are heard and be given an opportunity to prove his
innocence.

As to the holding of the trial court about dishonesty or misconduct
in office having connection with one’s duties and functions in order to
warrant punishment, this involves an interpretation of Section 694 of
the Revised Administrative Code, which for purposes of reference we
reproduce below:

“SEC. 694. Removal or suspension.—No officer or employee in the civil service shall be removed or suspended except for cause as provided by law.

“The
President of the Philippines may suspend any chief or assistant chief
of a bureau or office and in the absence of special provision, any
other officer appointed by him, pending an investigation of his bureau
or office. With the approval of the proper head of department, the
chief of a bureau or office may likewise suspend any subordinate or
employee in his bureau or under his authority pending an investigation,
if the charge against such subordinate or employee involves dishonesty,
oppression, or grave misconduct or neglect in the performance of duty.” (Italics supplied).

It will be observed from the last four lines of the second paragraph
that there is a comma after the words dishonesty and oppression,
thereby warranting the conclusion that only the phrase “grave
misconduct or neglect” is qualified by the words “in the performance of
duty”. In other words, dishonesty and oppression to warrant punishment
or dismissal, need not be committed in the course of the performance of
duty by the person charged.

Section 34 of Republic Act No. 2260, known as the Civil Service Act
of 1959, which refers to the same subject matter of preventive
suspension, throws some light on this seeming ambiguity. We reproduce
said section 34:

“SEC. 34. Preventive Suspension.—The
President of the Philippines may suspend any chief or assistant chief
of a bureau or office and in the absence of special provision, any
other officer appointed by him, pending an investigation of the charges
against such officer or pending an investigation of his bureau or
office. With the approval of the proper Head of Department, the chief
of a bureau or office may likewise preventively suspend any subordinate
officer or employee in his bureau or under his authority pending an
investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are strong reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.” (Italics supplied).

It will be noticed that it introduces a small change into Section
694 of the Revised Administrative Code by placing a comma after the
words “grave misconduct,” so that the phrase “in the performance of
duty” instead of qualifying “grave misconduct or neglect”, as it did
under Section 694 of the Revised Administrative Code, now qualifies
only the last word “neglect”, thereby making clear the legislative
intent that to justify suspension, when the person charged is guilty
merely of neglect, the same must be in the performance of his duty; but
that when he is charged with dishonesty, oppression or grave
misconduct, these need have no relation to the performance of duty.
This is readily understandable. If a Government officer or employee is
dishonest or is guilty of oppression or grave misconduct, even if said
defects of character are not connected with his office, they affect his
right to continue in office. The Government cannot well tolerate in its
service a dishonest official, even if he performs his duties correctly
and well, because by reason of his government position, he is given
more and ample opportunity to commit acts of dishonesty against his
fellow men, even against offices and entities of the Government other
than the office where he is employed; and by reason of his office, he
enjoys and possesses a certain influence and power which renders the
victims of his grave misconduct, oppression and dishonesty less
disposed and prepared to resist and to counteract his evil acts and
actuations. As the Solicitor General well pointed out in his brief,
“the private life of , an employee cannot be segregated from his public
life. Dishonesty inevitably reflects on the fitness of the officer or
employee to continue in office and the discipline and morale of the
service.”

It may not be amiss to state here that the alleged misappropriation
involved in the criminal case is not entirely disconnected with the
office of the petitioner. True, the Maternity Employee’s Cooperative
Association that own the funds said to have been misappropriated is a
private entity. However, as its name implies, it is an association
composed of the employees of the Maternity and Children’s Hospital
where petitioner was serving as an employee. Moreover, if petitioner
was designated to and occupied the position of manager and cashier of
said association, it was because he was an employee of the Maternity
and Children’s Hospital. The connection though indirect, and, in the
opinion of some, rather remote, exists and is there.

The trial court cites the cases of Mondano vs. Silvosa 97 Phil., 143; 51 Off. Gaz., [6], 2884 Lacson vs.
Roque (92 Phil., 456; 49 Off. Gaz., 93), and others to support its
holding that an official may not be suspended for irregularities not
committed in connection with his office. These cases, however, involve
elective officials who stand on ground different from that of an
appointive officer or employee, and whose suspension pending
investigation is governed by other laws. Furthermore, an elective
officer, elected by popular vote, is directly responsible only to the
community that elected him. Ordinarily, he is not amenable to rules of
official conduct governing appointive officials, and so, may not be
forthwith and summarily suspended, unless his conduct and acts of
irregularity have some connection with his office. Furthermore, an
elective official has a definite term of office, relatively of short
duration; naturally, since suspension from his office definitely
affects and shortens this term of office, said suspension should not be
ordered and done unless necessary to prevent further damage or injury
to the office and to the people dealing with said officer.

In view of the conclusion that we have arrived at, we deem it
unnecessary to discuss and determine the other questions raised in the
appeal.

In view of the foregoing, the appealed decision is hereby reversed, with costs.

Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.