ROMULO A. YARCIA, PLAINTIFF-APPELLANT, VS. CITY OF BAGUIO, REPRESENTED BY:  THE CITY TREASURER, THE CITY AUDITOR, THE CITY COUNCIL AND THE CITY MAYOR, DEFENDANTS-APPELLEES.

DISSENTING OPINION

BARREDO, J.:

Verily, every government employee
found after pro­per hearing to be dishonest in the performance of duty should
get the full measure of punishment.  With
so many employees who ought to be dealt with escaping prosecu­tion or even only
the filing of charges, on account of political pressure, “tayo-tayo”
considerations and other improper reasons, the government is lucky when once in
a while somebody really gets caught, is prosecuted or in­vestigated, found
guilty and punished.  Surely, this is not
to say that just, because such, a guilty employee has to be punished, this
Court should sanction the execution of penalties in a manner far beyond those
fixed or im­posed by the appropriate authority. 
Any penalty to be suffered by an erring employee must be one authorized
by law and determined by the corresponding judicial or administrative body or
officer.  The execution of the
corresponding decision cannot go beyond what is so de­termined.  I hold these principles to be the imperatives
of justice and the rule of law in every case, regardless of the nature of the
offense or misconduct committed by a government employee.  The fact that appellant was found guilty of
dishonesty, instead of another kind of offense, does not justify deviation from
these princi­ples.

On these premises, it is my
considered view that the decision of the majority in this case is not in
accordance with law and unjust.

In brief, the situation
confronting the Court in this case is the following:  Appellant, a market col­lector of Baguio
City, working directly under the City Treasurer, was charged with having
collected an extra sum of P2.00 from each of two meat vendors, making it appear
in the official receipts as if they were offi­cially collected and payable to the
government, when in fact, the money was for him, thereby profiting there­from
personally albeit without loss to the government. Found guilty by the City
Treasurer and upon recommenda­tion of the Secretary of Finance, the
Commissioner of Civil Service ordered his dismissal from the service and
further enjoined the immediate execution of his de­cision, “in the
interest of the public service”, so, he ceased working on March 15, 1963.
On appeal to the Civil Service Board of Appeals, this body “found nothing”
in the records “to justify respondent’s (appel­lant’s) exoneration from
the charge proferred against him, but “considering, however, that the City
Trea­surer of Baguio who was more in a position to evaluate the facts of the
case, recommended the imposition upon respondent-appellant of a penalty short
of dismissal from the service, coupled with the fact that the go­vernment did
not incur any pecuniary loss, We believe that a fine equivalent to
respondent-appellant’s six (6) months’ pay will be commensurate with the
offense committed.” On the basis of this decision and because, as already
stated, he had been out of the service by virtue of the “immediate
dismissal” ordered by the Com­missioner of Civil Service since March 15,
1963 to Feb­ruary 14, 1966, when he was reinstated, a period of two years and
nine months, he demanded the payment of back-pay computed at the rate of
P180.00 a month for the whole of said period minus the amount corresponding to
the fine imposed upon him by the Civil Service Board of Appeals, or a net
amount of around P5,400.00 and when refused, filed this action with additional
prayer for moral and exemplary damages and costs.

The trial judge predicated his
judgment against petitioner on the following concededly righteous pos­tulations:

“Defendants contend that plaintiff is not entitled to collect
back salaries because aside from the fact that he did pot render any service he
was not exonerated.

“The contention of the defendants is in order since it clearly
appears that it is true.  Furthermore,
the demoralizing effect on the public
service will be so tremendous if employees who have been suspended for cause
will be allowed to collect back pay while not performing any service at
all.  It will be conducive to infraction
of rules and regulations of the Civil Service sufficient to cause sus­pension
but not dismissal. The Court will not give a premium to employees for their
failure to do their duty or to be dishonest.”

Comes now the majority and,
obviously imbued with the same righteous considerations, holds:

“Parenthetically, the Civil Service Board of Appeals’ tendency
to modify the penalty of dismissal imposed by the Commissioner in dishonesty
cases, with the imposition of a lesser and lenient penalty of suspension and/or
fine notwithstanding the absence of any
extenuating circumstances, cannot but have a demoralizing effect on the civil
ser­vice.  Dishonesty has always been and
should remain anathema in the civil service. 
In the case at bar, the board inexplicably preferred the city treasurer’s
recommendation, for the imposition of a penalty short of dismissal
notwithstanding plaintiff’s having been found guilty of grave dereliction of
duty in a prior case, over that of his super­ior, the Department head, for im­position
of the capital administra­tive penalty of dismissal.  It strikes us, too, that the circum stance
that the government did not suffer any pecuniary loss, invoked by the board,
did not mitigate plain­tiff’s offense, since the charge of which he was found
guilty was mulcting the complainants by collecting from then unreceipted
transfer fees of large cattle brought to Baguio City for butchering in the
slaughter­house when such fees were not actually collectible.  The government thereby suffers a greater loss
incapable of pecuniary estimation with the consequent undermining of the
people’s faith and confidence in their government and its civil servants.”

With all due deference to my
senior brethren and their well grounded concern for our “people’s faith
and confidence in our government and its civil servants”, and without
yielding to anyone in requiring absolute honesty from all in the public
service,I submit that the first point that bears emphasis is that this Court
has no power to read into the decision of the Civil Service Board of Appeals
something that is not there.  We are not
called upon to review the said decision; nor is it within Our legal competence
to do so, (Section 18 [b], Civil Service Act of 1959) much as there might be
reason to do so because it is not in accord with Our sense of justice.  Unfortunately, under the rule of law, as I
conceive it, that decision must stand, right or wrong and whether We like it or
not.  There is no law authorizing Us to
review decisions of the Civil Service Board of Appeals.  Indeed, We are not being asked, to do so in
this case.  No amount of rationalization
can take Us out of the stark reality that the punishment found by the Civil
Service Board of Appeals to be commensurate with the offense committed by
petitioner is fine equiva­lent to six months’ pay, no more.  For Us to sanction the execution of this
decision in a manner which will make him, in effect, lose
two-years-and-nine-months’ ­pay is, to say the least, manifestly unwarranted
and baseless in law and justice.

The majority tries to draw aid and
comfort from decided cases.  Regretably,
if We must be candid, the present case is unprecedented.  The case of Villamor v. Lacson, 12 SCRA 418,
which appears to bear the closest resemblance to it, is still authority for
appellant rather than for appellee.  It
is true that in that case, Villamor was immediately considered resigned and was
not allowed to serve, and he was denied backpay after the Office of the
President expressly considered the period he was not in the service as
sufficient penalty for the offense he was found guilty of.  And this is where, I am afraid, the majority
flaws.  It is equat­ing the present case
with that of Villamor when nowhere in the decision, of the Civil Service Board
of Appeals may it be remotely inferred that the Board “connoted that
although dismissal would be the proper penalty, it considered plaintiff’s
separation from work for the pe­riod covered of almost three years plus a
six-months’ fine as sufficient punishment.” On the contrary, what the
Board very explicitly held was simply this:

“From all the foregoing, we are morally persuaded that the
guilt of respondent-appellant has been amply established by the evidence of
record.

“Considering, however, that the City Treasurer of Baguio who
was more in a position to evaluate the facts of the case, recommended the
imposition upon respondent-appel­lant of a penalty short of dismissal from the
service, coupled with the fact that the government did not in­cur any pecuniary
loss, we believe that a fine equivalent to respondent-appellant’s six(6) months’ pay will be commensurate with the offense
committed.”

It is precisely because the Civil
Service Board of Appeals was very specific and definite in opining and holding
that it “believe(d) that a fine equivalent to six(6) months’ pay will
be commensurate with the offense committed – considering that the City
Treasurer of Baguio who was more in a position to evaluate the facts of the
case, recommend the imposition of a penalty short of dismissal from the service
coupled with the fact that the government did not incur pecuniary loss“,
that I am vehement in insisting that there is no room whatso­ever for the
construction of its decision:  Much less
can We alter it by drawing therefrom an inference that is diametrically
different from what is very emphatically stated therein in the most unequivocal
way.  Stated dif­ferently, the Board
stated in unmistakable terms the reason for the lighter punishment it has
provided, how can We add to these reasons in order only that We may justify Our
decision which We believe to be more in con­sonance with the public interest?

The invocation of the principle of
no-work-no-pay does not impress me in this instance, for the simple rea­son
that in the decided cases wherein such principle was applied, the Court was
dealing with preventive suspen­sions or dismissals cut short by immediate
reinstatement on the ground that, according to the deciding authority the
period covered by the proceedings and during which the employee concerned did
not work was deemed sufficient pu­nishment. 
It was, therefore, proper to apply the principle in those cases; but as
will be explained later, such application has no justification in this
case.  Any way, what is said in the
Villamor case about “as you work, so shall you earn” is pure obiter
dictum, since the Office of the President expressly ordered that the whole
period Villamor was out of the service was the penalty.  Here, We have an entirely different
situation. Here there was no preventive nor unjustified suspension.  Neither did the Civil Service Board of
Appeals consider the period appellant was not in the service as a proper
penalty or part thereof.  Not by any
means is such an idea suggested in the Board’s derision which I have read
thoroughly and repeatedly. Frankly, I am at a loss how the majority can claim
such an idea is “connoted” there­in. 
I submit that the more reasonable view is that treating, as We are
treating, of a penalty no less, the failure of the Board to state expressly the
idea sug­gested by the majority must be construed, if construc­tion must be
indulged in, in favor of the respondent. 
As far as I know, this is the rule of liberal construction We have
always followed.

As to the cases of Gonzales v.
Hernandez and Aus­tria v. Auditor General, also relied upon by the majori­ty,
it only need be:  mentioned that in the
Gonzales case, the decision of the Civil Service Board of Appeals ex­pressly
provided that Gonzales should not be given back salaries whereas the case of
Austria was one of preven­tive suspension, not immediate dismissal.  The case of Abellera v. City of Baguio
likewise cited, aside from being one of unauthorized preventive suspension will
be further referred to anon. This is really the first case that has come to
this Court where an”immediate dismissal” has been ordered by the
Civil Service Commissioner and later the Civil Service Board of Appeals has
imposed a much lighter penalty.  In the
case of Tañada v. Legaspi, infra, an “immediate dismissal” was
also involved but as will be discussed later, there the respondent was exo­nerated
on appeal.

As I see it, the issue We must
resolve in the pre­sent case is this: 
When a government employee is imme­diately dismissed from the service by
order of the Com­missioner of Civil Service and on appeal to the Civil Service
Board of Appeals, the latter body finds that while such employee is indeed
guilty, the penalty com­mensurate with the offense committed is less than such
dismissal, is the employee without any remedy for the damages suffered by him
from the erroneous decision of the Commissioner of Civil Service that might
have caused such employee and his family untold misery and woe?  I grant that guilt must be punished, and
more, dishonest employees in the public service must be booted out without
unnecessary delay and without mercy.  I
do not question now the power of the Commissioner of Civil Service to order the
immediate execution of his de­cision in administrative cases.^[1] What I cannot accept, however, is that by the
majority decision, We are rendering nugatory the power and jurisdiction of the
Civil Ser­vice Board of Appeals to impose a penalty less than that imposed by
the Civil Service Commissioner, and what is more, We are making an employee,
guilty of dishonesty though he is, suffer a penalty definitely heavier and more
harsh than that ordained by the authority that has the legal power to determine
what the final penalty should be, which authority, happens not to be the
Supreme Court.  A single example will
serve to illustrate my point.  Supposing
an employee is found guilty of an administrative offense and the Commissioner
of Civil Ser­vice orders the immediate execution of the penalty im­posed by him
of six months suspension and after a year or so, the Civil Service Board of
Appeals decides that the penalty should have been only one month fine or sus­pension,
is the employee to be left to suffer the penalty of six months suspension by
denying him his backpay for five months? 
In such a case, what good will it serve him to appeal and what legal
worth would the decision of the Civil Service Board of Appeals have?  To ask these questions is to see how plainly
absurd the majority’s position is. 
Withal, in the very case of Abellera v. City of Baguio, cited by the
majority, our learned brother, Mr. Justice J.B.L. Reyes very aptly said,
“Clear­ly, Abellera’s second suspension from office, from July 10, 1961 to
November 10, 1963, was unjustified and the payment of the salaries
corresponding to said period is, consequently, proper. Otherwise, Abellera
would in effect, suffer a suspension longer than that meted him by the Civil
Service Board of Appeals. (Emphasis supplied) Notably, the Abellera case
was also a case of dishonesty involving not only P4.00 but P8,750.48.

At this juncture, it is important
to note that appellant has cited in his brief the decision of this Court in
Tañada v. Legaspi, 13 SCRA 566, over the pen of our able colleague, Mr. Justice
Zaldivar. Indeed, the facts of that case are the ones almost parallel to the
present one.  Tañada, an assistant
sanitary inspec­tor was administratively charged with having confiscated four
cans of salted fish from one Maria Llarinas, who claimed additionally that one
of said confiscated cans was later being offered for sale by somebody at the in­stance
of Tañada.  At the same time, a criminal
case of robbery, based on the same facts, was filed against him in court.  Meanwhile, he was suspended.  In due course, because he was convicted by
the court in the criminal case, he was found guilty in the administrative case
and the Commissioner of Civil Service ordered his dis­missal from the
service.  On appeal, however, of the
criminal case, the Court of Appeals absolved him.  Ne­vertheless, the Commissioner of Civil
Service, acting on a motion for reconsideration of Tañada, relented only
slightly; instead of affirming the dismissal, he ordered that Tañada be
considered resigned as of the date of his suspension.  This decision was appealed to the Civil
Service Board of Appeals, but the appeal was dismissed for having been made out
of time.  Tañada took the case to the
Office of the President.  Here he was
exonerated and ordered reinstated.  Upon
these acts, this Court sentenced the City of Tacloban, Tañadas employer, to pay
him back salaries for the full period he was out of the service.^[2] Did it matter to this Court that the charge was
robbery or malversation?  No.

I am the first to realize that
this case of Tañada deals with an exonerated and acquitted employee, whereas,
in the case at bar, Yarcia was not exonerated; on the contrary, he was found
guilty.  My point, how­ever, is that
although he was not exonerated, the authority that has’ the final say as to
what penalty should be meted him has ruled that he should pay only six months’
salary as fine, because of reasons, express­ly stated in its decision, related
to the circumstances attending the commission of the offense which, accord­ing
to the Board, were best known to the City Treasurer who refused to recommend
dismissal.  I hold that if an exoneration
justifies complete restitution, there is no reason why the imposition of a
lighter penalty by the reviewing authority, because of attending circumstances
found by it to justify such penalty, should not have pro tanto
beneficient effect for the employee.  I
must keep on saying, because this is the main element of legal baselessness and
injustice that I find in the ma­jority decision, the effect of Our decision is
to make appeals to the Civil Service Board of Appeals, more often than not,
nothing but an exercise in futility, as the common saying goes.  It is too settled to, need cita­tion of
authorities that a construction which has this effect is not favored.

What I cannot understand is why
the majority seems to consider immediate dismissal before final decision of the
Civil Service Board of Appeals as being in the same plane with preventive
suspension.  To begin with, I do not
believe it can be denied that juridically and con­ceptually, dismissal cannot
be equated with suspension; it is well known that their respective consequences
and implications are clearly different. 
Secondly, preventive suspension is not in legal contemplation a penalty;
it is just an administrative devise to insure the smooth and unobstructed
course of the investigation of the em­ployee and in order to remove him from
any opportunity to tamper with the evidence or the witnesses or other­wise
hamper the investigation.  On the other
hand, an immediate dismissal is a penalty, no more no less than a final
dimissal, except for the possibility that it may be reversed.  In the first case, therefore, the employee is
not punished; in the second, he definitely is. 
Thirdly, with respect to preventive suspension, there is a specific
statutory provision to, the effect that in case of exoneration, the employee
suspended is entitled to backpay. (Sec. 35, Civil Service Act of 1959) In other
words, there is, at least, statutory basis for the exist­ing jurisprudence,
which I am not presently questioning to avoid confusion of discussion,^[3] holding that in any case short of exoneration, the
suspended employee has no right to backpay. Now, in the case of immediate dis­missal,
which after all, has no statutory but only reg­lamentary basis, as already
noted earlier, there is no similar statutory provision.  Are We authorized by any principle of
construction to supply this legislative pausity?  This is exactly what the majority is doing,
and I disagree.  They are trying to draw
a parallel where the legislature has not deemed it wise to provide for it. That
would be judicial legislation, and on, top of it, We are making our own
construction of our judicially created substantive rule.  Considering again that We are here dealing
with a punishment or penalty, I feel very strongly that fundamental principles
of statutory construction, if not of justice, should re­strain Us from such, a
questionable venture.

The question may be asked, why
should a rule be adopted in cases of preventive suspension different from that
in cases of “immediate dismissal”? 
I believe that the reason is because, by its very nature and con­sidering
the reasons therefor, such a suspension may be lifted as soon as the need for
it ceases, whereas there is hardly any such chance in the case of
“immediate dismissal”.  So, if
the employer does not take any step to have his suspension lifted, then he is
estopped from claiming any salary during his suspension.  And should such suspension be found by the
authorities concerned as essential during the whole investigation, the employ­ee
must suffer it just the same, because, by legislative fiat which has declared
that he is entitled to backpay only if exonerated, this Court, has ruled, in
effect, that such suspension retroactively becomes part of any penalty that may
be imposed on him on appeal, even if this should be lighter than that provided
in the original decision.^[4] Moreover, under Section 35 of the Civil Service Act,
a preventive suspension cannot last more than sixty(60) days, hence, the loss
to the employee concerned is not really substantial.  Parenthetically, must add that what I say in
this separate opinion about “immediate dismissal” applies equally to
punitive, as distinguished from preventive, suspension.

The majority opinion exudes a tone
of distrust or at least, laments the alleged leniency or benignity, of the
Civil Service Board of Appeals.  This
Board is composed of three members. 
Truth to tell, I would rather have confidence in a board of three than
fully entrust the fate of government employees in the hands of one Civil
Service Commissioner who can, as likely, abuse his powers founded, to be sure,
not on the Service Law itself, but on regulations issued by himself.

I would like to point out that
while the immediate implementation of the order of dismissal by the Civil
Service Commissioner may be within his legal competence and could, therefore,
have been legal before the decision of the Commission was modified, the
modificatory decision of the Civil Service Board of Appeals removed completely
the basis of such implementation and as a necessary legal consequence, the
effects thereof must be set aside and repaired. 
This is to me the essence of justice and the rule of law.

Legal solutions in pari
materia are not wanting. Section 2 of Rule 39 of the Rules of Court
authorize for good reasons, the immediate execution of decisions of the Courts
of First Instance during the pendency of an appeal, but then, evidently to
avoid injustice, Section 5 of the same Rule provides: “When the judgment
executed is reversed totally or partially on appeal, the trial court, on
motion, after the case is remanded to it, may issue such orders of restitution
as equity and justice may warrant under the circumstances.” I am aware of
no better principle than that underlying this provision that can be applied to
the case at bar, for here, as in the ease before Us, the order of immediate
execution is concededly authorized when is­sued, but it is considered, in
effect, as losing its le­gal basis after the executed decision is reversed or
mo­dified, hence the necessity of equitable restitution to the party prejudiced
by the premature execution.

I, therefore, vote to reverse the
judgment of the trial court so that appellant may be paid his back sala­ries
during the period of his originally authorized dis­missal which was
subsequently deprived of legal basis, minus the fine which he has been
sentenced to pay the government.

^[1] The source of this power is not the Civil
Service Act; it is derived from the Civil Service Rules purportedly
implementing the Civil Service Law. (See Sec. 28 of the Rules)

^[2] I note that the Court treated the case as if
it were a case of preventive suspension. 
This is evident from the citation made in the decision.

^[3] When the appropriate time comes, I might have
occasion to examine this ruling more deeply; it is not involved here now.

^[4] This is a construction of Sec. 35 of the
Civil Ser­vice Law which expressly provides that in cases of preventive
suspension, should the respondent be ex­onerated, he shall be reinstated and paid
his salaries during the period of suspension. 
No similar provision, exists as to “immediate dismissal”, per­chance
because such a procedure is not part of the law itself but is merely a
concoction of the Commissioner of Civil Service in the Rules promulgated by him
purportedly to implement the law.