NAZARIO EQUIZABAL, MUNICIPAL MAYOR OF BUHI, CAMARINES SUR, PETITIONER, VS. HON. APOLONIO G. MALENIZA, PROVINCIAL GOVERNOR OF CAMARINES SUR, AND THE HON. MEMBERS OF THE PROVINCIA…

The provincial governor of Camarines Sur issued an order dated January 22, 1965, suspending herein petitioner
municipal mayor of Buhi in view of administrative
charges (Adm. Case No. 3) filed against the latter for oppression,
maladministration, violation of the Administrative Code, serious misconduct and
neglect of duty.^[1]
Petitioner received the order on February
5, 1965.

On February 16, 1965,
petitioner filed a motion with the provincial board to dismiss the administrative
case.  Respondent provincial governor
filed his opposition, to which petitioner countered with his reply.  On March
2, 1965, the provincial board denied the motion to dismiss and set
the hearing of Administrative Case No. 3 to March 4, 1965.^[2]

Petitioner’s counsel received the notice of hearing on March 4, 1965 and since counsel was
out of town, his office clerk appeared and manifested such fact before the
provincial board which postponed the hearing to March 9, 1965.  On
said date, upon joint motion, the hearing was reset to March 15, 1965.^[3]

On March 10, 1965,
Francisco Arce, Pedro Esquivel and one Felipe Atutubo filed charges with the respondent governor who
instituted Administrative Case No. 4 against petitioner.^[4]
On March 12, 1965,
petitioner received a new order of suspension in connection with the second
charge.

On March 15, 1965, hearings in Administrative Case No. 3 were
conducted, the same lasting up to midnight and upon agreement of the parties,
continuance was set to March 23, 1965.^[5]
On the other hand, in Administrative Case No. 4, two of the complainants –
Esquivel and Arce – filed a motion to withdraw their
complaint alleging that their signatures were obtained thru fraud and
misrepresentation.^[6]
The provincial board set this motion for hearing on March 17, 1965 and required respective counsel
for complainant and respondent to file written replies to said motion to
withdraw not later than March 17, 1965.^[7]

Respondent governor filed his reply on March 16, 1965, alleging that Esquivel and Arce were only corroborating witnesses and that the real
complainant before him was Atutubo.^[8]
On March 18, 1965, upon
continuation of Administrative Case No. 4, petitioner, thru counsel,
asked for the outright dismissal of the charge in view of the motion to
withdraw with its supporting affidavits.^[9]

In Administrative Case No. 3, petitioner’s counsel, on March 23, 1965, asked for another
continuance.

On April 13, 1965, petitioner commenced the instant proceedings
for mandamus and prohibition seeking:
(a) to compel respondent governor to reinstate him, effective as of March 12,
1965; (b) to enjoin the provincial board from continuing to hear Administrative
Case No. 4, and (c) to recover actual and moral damages.  On the same date, the petitioner, according
to respondent governor in his answer, wired the latter to report his having
reassumed the office of mayor.^[10]

We gave due course to the petition.  Respondents filed their answers, as required,
with affirmative defenses and a counterclaim for damages.  Petitioner replied to the counterclaim for
damages.  At the hearing here, both
parties were required to file memoranda. 
Only petitioner complied.

The law involved here is Sec. 2189 of the Revised Administrative
Code which states:

xx                  xx                     xx                     xx

“The preventive suspension of a municipal officer shall not be
for more than thirty days.  At the
expiration of the thirty days, the suspended officer shall be reinstated in
office without prejudice to the continuation of the proceeding against him
until their completion, unless the delay in the decision of the case is due
to the fault, neglect, or request of the accused, in which case
the time of the delay shall not be counted in computing the time of the
suspension:  Provided, That
the suspension of the accused may continue after the expiration of the thirty
days above mentioned in case of conviction until the [Secretary of Interior]
President shall otherwise direct or the case shall finally be decided by said
[Secretary] President.” (Stress supplied)

Petitioner’s point seems to be this: from February 5, 1965 (when his 30-day suspension
period began) to March 11, 1965,
35 days lapsed.  From this period should
be deducted the 5-day interval from March
4, 1965 (when he asked for a continuance) to March 9, 1965 (the date set for hearing).  March
11, 1965 would then be the 30th – or last – day of his
suspension.  Ergo, he should have
been reinstated on March 12, 1965.
 The postponement on March 9, 1965 ought not to be imputed to him since
he did not ask for it solely, much less voluntarily.

Petitioner, however, overlooks the fact, alleged by respondents
and not controverted by him, that he filed a motion
to dismiss Administrative Case No. 3 on February
16, 1965, which the provincial board resolved only on March 2, 1965, to clear the way for
the hearing on the merits which was set on March 4.  The 14 days interval here is also imputable
to petitioner because for this period, the provincial board was prevented, at
his own instance, from forthwith proceeding and deciding the case on the merits
on or before the 30th day from February
5, 1965.  The board’s attention
was diverted to the disposing of the pending motion to dismiss first.  It stands to reason that, under Sec, 2189, supra,
the period of preventive suspension runs only when the respondent municipal
official does nothing to hinder the provincial board from immediately proceeding
to dispose of the administrative case on its merits.

Even assuming petitioner’s submission to be correct, he could not
be reinstated on March 12, 1965
because of the institution of administrative Case No. 4 against him wherein a
new suspension order was issued.  His
claim, to prove malice and bad faith, that Atutubo is
not the real complainant since the latter was not even mentioned in the copy of
the administrative complaint furnished him, is without merit.  The complainant in Administrative Case No. 4
is the Governor who filed the charges with the provincial board.  Atutubo, Esquivel
and Arce, who are the complainants before the governor,
are only the latter’s supporting witnesses in the charge presented to the
provincial board.  That petitioner was
not furnished copy of Atutubo’s affidavit at the very
outset is no irregularity.  Under Secs. 2188 and 2189 of the
Revised Administrative Code, only a copy of the written charges filed
with the provincial board is required to be served on the respondent municipal
official.  Supporting affidavits need not
be attached thereto nor served therewith.

Regarding the delay in setting for hearing on the merits
Administrative Case No. 4, the same appears to be partly due to petitioner
himself.  Respondents allege, and
petitioner does not deny, that on March
18, 1965, he moved for the dismissal of the case.  Petitioner’s own ex-parte
motion^[11]
here for preliminary injunction against the administrative hearing set on May
28, 1965, confirms the existence of said motion to dismiss, the preliminary
disposition of which would again temporarily divert the attention of the
provincial board from the merits of the pending case.

WHEREFORE, the petition, being without merit, is hereby
dismissed.  Costs
against petitioner.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, and
Angeles, JJ., concur.

Sanchez, Ruiz Castro, and
Fernando, JJ., in the
result.

^[1] Rollo, p. 9.

^[2] Rollo, p. 53.

^[3] Rollo,
pp. 33, 85.

^[4] Rollo, pp. 10, 12-22, 55; the charge was for
corruption and dishonesty in office.

^[5] Rollo,
pp. 33, 42.

^[6] Rollo, pp. 23-25.

^[7] Rollo, p. 42.

^[8] Rollo, p. 29.

^[9] Rollo, p. 42.

^[10] Rollo, p. 45.

^[11] Rollo, p. 74.