G.R. No. L-25618. March 28, 1969
ABELARDO SUBIDO, AS COMMISSIONER OF CIVIL SERVICE, AND ALIPIO BUENAVENTURA, AS EXECUTIVE DIRECTOR, CIVIL SERVICE COMMISSION, PETITIONERS, VS. HON. SIMEON GOPENGCO, JUDGE, CFI …
RUIZ CASTRO, J.:
Fausto Varela was the Deputy
Commissioner of Civil Service on February 21, 1962 when he was suspended from
office by the President of the Philippines on charges of grave misconduct in
office, insubordination, discourtesy, and violation of administrative order
46, series of 1937 (regarding undue publicity), filed against him by the then
Commissioner of Civil Service Amado del Rosario.
On November 11, 1965
Varela filed a petition for certiorari and mandamus with the Court of
First Instance of Manila against Salvador Mariño
(then Executive Secretary), Civil Service Commissioner Abelardo
Subido and Acting Deputy Commissioner of Civil
Service Alipio Buenaventura, seeking the
nullification of the administrative proceedings against him and his
reinstatement to his position as Deputy Commissioner. In his petition, docketed as civil case
63245, Varela alleged that he was suspended on the basis of an unverified
complaint; that his suspension was lifted only after 85 days had elapsed; that
thereafter he was detailed successively to different positions in the
Government, everyone of which was of a much lower rank than that of Deputy
Civil Service Commissioner; and that such reassignments “operated to
impose upon [him] the administrative penalty of demotion and removal from his
office for a cause not provided by law and without due process, in flagrant
violation of Section 1 of Art. III, Section 4 of Art. XII of the Constitution
and of Section 32 of Republic Act No. 2260 (Civil Service Act of 1959),”
and were made “in excess of jurisdiction and with grave abuse of
discretion.” He, therefore, prayed that he be reinstated as Deputy
Commissioner of Civil Service.
Upon his motion, the court issued its injunctive order of
November 16, 1965, and, two days later, on November 18, issued a writ of
preliminary mandatory injunction directing Secretary Marino and the herein
petitioners Subido and Buenaventura to reinstate him
to his former position.
The petitioners herein protested the issuance of the mandatory
injunction and asked the court to reconsider its order, but because the matter
might take some time to resolve, they agreed to abide by the order and allow
Varela’s reinstatement in the meantime.
Varela subsequently filed an opposition, and the petitioners in
turn filed their reply.
Meanwhile, Secretary Marino and the petitioners filed a motion to
dismiss Varela’s suit, contending that the petition stated no cause of action;
that the cause of action, if any, was barred by prescription; and that Varela
had waived his claim to reinstatement.
Varela filed an opposition.
On December 11, 1965
the motion for reconsideration and the motion to dismiss were submitted for
resolution.
On December 21, 1965,
the President found Varela guilty of misconduct in office, insubordination and
“presumptuous conduct,” and accordingly considered him resigned from
the service “without prejudice to recovering retirement and leave benefits
… and without prejudice to his appointment to another position equivalent in
rank to his present post.” The President’s decision was contained in
Administrative Order 171, dated December
21, 1965. Following the
issuance of the President’s order, the petitioners asked the court to dissolve
the writ of preliminary mandatory injunction on the ground that the case had
become moot.
Varela countered by filing a motion for a restraining order
against the enforcement of the President’s order. He averred that the administrative
proceedings against him were void because he was suspended without being
afforded an opportunity to explain; that he was suspended even before the
investigation could be started; that his suspension was effected not by the
President but only by the Executive Secretary acting “by authority of the
President;” that at any rate the power to suspend had been transferred to
the Civil Service Commissioner; that administrative order 171 was not based on
the evidence presented at the investigation but on a mere affidavit; and that
contrary to executive order 370, series of 1941, the case against him was not
terminated within 15 days. Varela reproduced
these allegations in a supplementary petition he filed on January 31, 1966.
On January 4, 1966
the court granted Varela’s motion and enjoined the petitioners from enforcing the
President’s administrative order and from otherwise disturbing Varela in the
discharge of his duties and functions as Deputy Commissioner of Civil Service.
The petitioners moved for reconsideration on the ground that the
case had become moot and that enforcement of the President’s order could no
longer be enjoined as it was earlier executed when a copy thereof was served on
Varela on December 27, 1965 and when, on the following day, December 28, the
petitioner Buenaventura was sworn in office as Deputy Civil Service
Commissioner in place of Varela.
Actually, Buenaventura’s
appointment was made on December 22, but because the office was not yet vacant
as Varela had not by then been informed of his relief, Buenaventura
did not take his oath until the day, after Varela was served a copy of the
President’s order.
On January 25, 1966, the court, in two separate orders, denied
the petitioners’ motion for reconsideration, their earlier motion to dissolve
the writ of preliminary mandatory injunction of November 18, 1965 (by virtue
of which Varela was reinstated-to his position), and their motion to dismiss
Varela’s suit in the lower court.
Hence, the present petition for certiorari and prohibition
to set aside the trial court’s injunctive order of November 16, 1965, the
mandatory injunction of November 18, 1965 directing the petitioners to
reinstate Varela to the office of Deputy Civil Service Commissioner, and the
order of January 4, 1966 enjoining the, petitioners from enforcing
administrative order 171 and disturbing Varela in the discharge of his
office. The petitioners, in consequence,
likewise seek the nullification of the proceedings in civil case 63245.
We gave due course to the petition and required the respondents
to answer. In the meantime, on February 18, 1966, we issued a writ
of preliminary injunction enjoining the enforcement of the disputed order of November 16, 1965 and the writ of
preliminary mandatory injunction of November
18, 1965.
1. In assaying the legality of the November 16, 1965 injunctive order and the writ of
preliminary mandatory injunction of November
18, 1965, we take for our text a rule long settled in this
jurisdiction:
“[S]ince an
injunction mandatory in its nature usually tends to do more than to maintain
the status quo, it is generally improper to issue such an
injunction prior to the final hearing; … on the other hand, in cases of
extreme urgency; where the right is very clear; where considerations of
relative inconvenience bear strongly in complainant’s favor; where there is a
willful and unlawful invasion of plaintiff’s right against his protest and
remonstrance, the injury being a continuing one; and where the effect of the
mandatory injunction is rather to reestablish and maintain a preexisting
continuing relation between the parties, recently and arbitrarily interrupted
by the defendant, than to establish a new relation, … the jurisdiction to
grant such injunction undoubtedly exists; and while caution must be exercised
in its issuance, the writ should not be denied the complainant when he makes
out a clear case, free from doubt and dispute.”[1]
As the issuance of a mandatory injunction is the exception rather
than the rule, the party applying for it must show a clear legal right the
violation of which is so recent as to make its vindication an urgent one.
Did the respondent Varela demonstrate such a clear legal right to
be returned to his former post? Was
there an urgent need to grant him relief?
In his petition Varela alleged that his suspension was not lifted until
after the lapse of more than sixty days and that instead of reinstating him to
his position as Deputy Civil Service Commissioner he was detailed to several
offices, one after the other, of a much lower rank, contrary to the following
provisions of the Civil Service Act of 1959:
“SEC. 32. Disciplinary
Action. – No officer or employee in
the civil service shall be removed or suspended except for cause as provided by
law and after due process: Provided, That a transfer from one position
to another without reduction in rank or salary shall not be considered
disciplinary when made in the interest of public service: …”
“SEC. 35. Lifting of
Preventive Suspension Pending Administrative Investigation. – When the administrative case against the officer
or employee under preventive suspension is not finally decided by the
Commissioner of Civil Service within the period of sixty (60) days after the
date of suspension of the respondent, the respondent shall be reinstated in
the service. If the respondent officer
or employee is exonerated, he shall be restored to his position with full pay
for the period of suspension.”
But as the Solicitor General correctly argues, the detail of
Varela to the different offices of the Government was merely temporary, and was
done in order to clear the atmosphere in the Civil Service Commission of the
animosity between Varela and Commissioner Del Rosario and other employees.[2]
After all Varela Continued to receive his salary as Deputy Commissioner of
Civil Service. What is more, section 35
above-quoted clearly states that in the event an administrative case is not
decided within sixty days, a suspended employee must “be reinstated in the
service,” and only if he is finally exonerated must he be
“restored to his position with full pay for the period of
suspension.”
Nor did the respondent’s case come to court with such urgency as
to call for a mandatory injunction to restore relations so recently
ruptured. Varela was suspended from
office on February 21, 1962,
and reinstated in the service on September 28 of the, same year, but it was not
until November 11, 1965
that he went to court. Consequently,
restoration of the respondent to his former position, assuming arguendo that this is required by law, had ceased to
be an urgent need, especially considering that the court should have foreseen
that by then the administrative case would most probably not take much longer
to decide, as in fact it was decided a month after the issuance of the
mandatory injunction in this case.
Absent a showing of a clear, urgent legal duty to restore the
respondent to his position, we hold that the court gravely abused its
discretion in issuing its injunctive order of November 16, 1965 and the writ of preliminary mandatory
injunction of November 18, 1965.
2. The propriety and legality of the preliminary mandatory
injunction aside, the court should have dissolved it following the promulgation
of administrative order 171.
The basic assumption underlying the issuance of the writ of preliminary
mandatory injunction, be it recalled, was that Varela’s transfer from one
office to another, while his administrative case was still pending, was
equivalent to removal without cause. For
although his petition contains allegations which in a way disparage the
administrative proceedings against him, yet the main thrust of his case was
that his assignment to various offices all of which are of a lower rank than
his former position, was a virtual removal without cause. As stated earlier, it was not until after the
promulgation of administrative order 171 that the petitioner directly
challenged the legality of the administrative proceedings by filing a
so-called supplementary petition. That
is why the injunctive order and the writ of mandatory injunction issued
pursuant thereto were directed not against the administrative proceedings but
only against Varela’s detail from one office to another. The result was that the administrative case
proceeded to final judgment without any interruption from the court,
culminating in the promulgation of administrative order 171. The issuance, therefore, by the court of the
order of January 4, 1966, which maintained the writ of preliminary mandatory
injunction, was a negation of the corollary assumption implicit in the earlier
order that the injunction issued thereunder was to
last only for as long as Varela was not adjudged guilty in the administrative
case.
Indeed, the situation here is similar to that of City of Butuan v. Ortiz,[3]
in which a court of first instance rendered judgment ordering the reinstatement
of the petitioner pending termination of the administrative case filed against
him upon the court’s finding that his suspension had been continued for more
than sixty days. However, the petitioner
did not ask for the execution of the judgment until after the administrative
case had been decided against him and he was about to be removed from the
service. This Court held that execution
of the judgment of the court was barred by the decision of the Civil Service
Commissioner.
“It is true that the judgment was
correct because the suspension was ordered on March 11, 1954, and by June 1, 1954, when the petition for mandamus was filed in
the Court of First Instance, more than 60 days have already expired without the
case having been decided. It is also
true that the decision of the Court of First Instance in said special civil
action continued to be executory when the motion for
execution was presented, because the 5-year period within which a decision of the
court may be enforced by motion had not yet expired, but as it was alleged and
shown in the motion for the reconsideration of the order granting execution,
that the Commissioner of Civil Service had already affirmed the decision of
the Municipal Board finding Soriano guilty on
November 29, 1954, the right to reinstatement was barred by the decision of the
Commissioner of Civil Service. … In other words, a supervening cause or
reason had arisen which has rendered the decision of the court ordering reinstatement,
no longer enforceable.”[4]
The “supervening cause” was a
superior cause, superseding the basis of the judgment and making its execution
untenable.
It is true that the President’s order is not as yet final because
Varela filed a motion for reconsideration,[5]
but it is equally true that decisions of this nature may be executed even
before they become final. The reason for
this is that public interest would be jeopardized if the Government were forced
to retain in its service, during the pendency of the
motion for reconsideration (or appeal), an employee who has been adjudged unfit
for retention in the service. On the
other hand, by making execution a matter of administrative discretion, public
interest would be properly sub-served and safeguarded, without prejudice, in
the event of exoneration, to the employee’s reinstatement with backpay and full restoration of his rights and privileges.[6]
ACCORDINGLY, the petition is granted, and the orders of November 16, 1965, January 4, 1966 and January 25, 1966, and the writ of
preliminary mandatory injunction of November
18, 1965 are set aside, without pronouncement as to costs.
Concepcion, C.J., Reyes, JBL, Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano, and Teehankee, JJ., concur.
Barredo, J., did not take part.
[1]
Manila Elec. & R.R. Co. v. Del
Rosario, 22 Phil. 433, 437 (1912); accord, Lemi
v. Valencia,
L-20768, Feb. 28, 1963, 7
SCRA 469; Bautista v. Barcelona,
100 Phil. 1078 (1957); Coronado v. Tan, 96 Phil. 729 1955); Villadores v. Encarnacion,
95 Phil. 913 (1954).
[2] Cf.
Quiocho v. Abrera,
64 O.G. 13334 (1967).
[3]
L-18054, Dec. 22, 1961, 3
SCRA 659.
[4] Id.,
3 SCRA at 661.
[5]
The record does not show hat action has been taken by the Office of the
President on this motion for reconsideration.
(Parenthetically, it is to be noted that some of the issues posed in the
supplemental petition filed by Varela on January 31, 1966 could and should have been raised in his
original petition for certiorari and mandamus of November 11, 1965, and all the issues,
in his motion for reconsideration of the President’s Administrative Order 171
of December 21, 1965.
[6]
Civil Service Act of 1959, sec. 35; Cabigao v.
Del Rosario, L18379, Oct. 31, 1962, 6 SCRA 578; see also Batungbakal v. National Development Co., 93 Phil.
182 1953); Tabora v. Montelibano,
93 Phil. 800 (1956).