G.R. No. L-24615. February 28, 1969
LEONARDO AVILA, PETITIONER-APPELLANT, VS. PEDRO M. GIMENEZ, AS AUDITOR GENERAL, ABELARDO SUBIDO, AS COMMISSIONER OF CIVIL SERVICE, THE PROVINCE OF BUKIDNON, LUIS R. LLAUDER, AS …
FERNANDO, J.:
Under the Civil Service Law,[1]
a situation confronting us would not have occurred as it is therein expressly
provided that when an administrative case against an officer and 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, [he] shall be reinstated in the service.”[2]
That was not so before.
In the case before us, petitioner was preventively suspended by
the Auditor General from his position as Provincial Auditor of Bukidnon on January
13, 1951 and was riot recalled to the service until August 15, 1963, when he was extended
an appointment as Acting Provincial Auditor of the same province, a period of
more than twelve and a half years. He
then filed an action for the recovery of his salaries from the time of his suspension
on January 13, 1959. A motion to dismiss was filed by the
Provincial Fiscal and the Solicitor General on behalf of respondents included
among whom were the then Auditor General, Pedro M. Gimenez,
and the Commissioner of Civil Service, Abelardo Subido. The lower
court, presided by the Hon. Abundio Z. Arrieta, found the motion meritorious and dismissed the
petition. Hence this
appeal by petitioner. We affirm
the order of dismissal of the lower court.
What were the controlling facts?
According to the well-reasoned order of the lower court of November 9,
1964: “Assuming the allegations of
the petition to be true, it appears that the petitioner was preventively
suspended by the Auditor General from his position as Provincial Auditor of Bukidnon on January 13, 1951 because of the filing before
the Court of First Instance of the province of Criminal Case No. 182 for Malversation of Public Funds against him and the then
Provincial Treasurer of the province. An
administrative case was also commenced by the Auditor General against the
petitioner in which a decision was rendered by the Commissioner of Civil
Service on February 12, 1953
finding him guilty of the charge so that he was fined one (1) month’s pay and
reprimanded. He did not appeal from said
decision of the Commissioner of Civil Service but made some efforts to obtain
his reinstatement. The Auditor General,
nevertheless, refused because of the pendency of the
criminal case aforestated. Eventually, the petitioner was convicted by
the Court of First Instance of Bukidnon and the
Auditor General, on November 25, 1958
recommended to the Commissioner of Civil Service his permanent separation from
the service effective as of the date of his suspension on January 13, 1951.”[3]
Then, on March 13, 1959,
petitioner wrote the Civil Service Commission requesting that no action be
taken on the recommendation of the Auditor General pending his appeal to the
Court of Appeals of the decision in the criminal case. The Civil Service Commission however turned a
deaf ear to such a plea approving such recommendation and separating him from
the service as of January 13, 1959. This order in turn was appealed to the Civil
Service Board of Appeals.[4]
Subsequently, his conviction was set aside by the Court of Appeals which
ordered a new trial. Then, on August 5, 1960, petitioner again
sought his reinstatement from the Auditor General, in view of the aforesaid
decision of the Court of Appeals.[5]
The fact of reinstatement was then noted in the appealed decision
thus: “On October 22, 1962, the Civil Service Commission
informed the Auditor General that it would interpose no objection to the
reinstatement of the petitioner, but nothing was done about it. On February
6, 1963, however, the Commissioner of Civil Service again called
the attention of the Auditor General, and the latter, extended him an
appointment as Acting Provincial Auditor for Bukidnon
on August 15, 1963, which
was forwarded to the Commissioner of Civil Service on September 6, 1963.
He accepted said appointment and is actually serving in that capacity at
present.”[6]
The first ground of the dismissal, as noted in the first
assignment of error for petitioner in this appeal, is that the lower court
could not have validly issued such an order on the ground of the delay in the
claim for salary during the period of his preventive suspension. The second alleged error would likewise
dispute the other ground for the order to dismiss, namely, that the emoluments
to a public office would go to the
person who rendered the service unless the contrary is provided.[7]
It would thus appear that the lower court was of the belief that a right to
recover salary after reinstatement exists, which could not be enforced, there
being in this particular case an insuperable obstacle to its being respected,
due to the long delay that elapsed before a claim was made.[8]
This view of the lower court is subjected to a challenge, as set
forth above in the first error assigned.
If there were no such right, however, no inquiry need be made on whether
or not such delay sufficed to constitute a bar to the success of the petition
in this case. Hence the crucial question
is the existence of a right to back salary assuming that the acceptance of an
appointment as Acting Provincial Auditor twelve and a half years later did
constitute reinstatement?
The answer, so petitioner believes, is supplied by the applicable
statutory provision found in the Revised Administrative Code. It reads thus: “When the Chief of a Bureau or Office
suspends a subordinate officer or employee from duty, the person suspended
shall not receive pay during suspension unless
the Department Head shall so order; but upon subsequent reinstatement of the
suspended person or upon his exoneration, if death should render reinstatement
impossible, any salary so withheld shall be paid, but without prejudice to the
application of the disciplinary provisions of section six hundred and
ninety-five hereof.”[9]
Petitioner would further invoke at least four decisions, decided
by us, which for him would be decisive of his right to compensation during the
period of his preventive suspension.
They are: Batungbakal
v. National Development Co.,[10]
National Rice and Corn Corp. v. Naric Workers’ Union,[11]
Tabora V. Montelibano[12]
and Tan v. Gimenez.[13]
The Batungbakal opinion was particularly stressed by
petitioner. It is understandable why. Thus:
“Having proven that he (the plaintiff) had been suspended and
dismissed without cause, contrary to the express provision of the Constitution,
his reinstatement becomes a plain ministerial duty of the Auditor General, a
duty whose performance may be controlled and enjoined by mandamus. There is no room for discretion. The Auditor
General is not being directed to perform an act which he may or may not
execute according to his discretion. He
is being asked and enjoined to redress a grievance, to right a wrong done. And the payment of the back salary is merely
incidental to and follows reinstatement, this, aside from the parallel and
analogy which may be found in section 260, paragraph 1, Revised Administrative
Code which provides for the payment of back salary upon reinstatement.”[14]
The pronouncement therein made by us finds confirmation in the two subsequent
cases abovecited, National Rice and Corn Corp. V. Naric Workers’ Union and Tabora v. Montelibano.
Then came Tan v. Gimenez,[15]
which apparently would further strengthen petitioner’s stand. For we there explicitly announced: “To deny [petitioner] the right to
collect his back salaries during such period would be tantamount to punishing
him after his exoneration from the charge which caused his dismissal from the
service.”
This apparently well-entrenched position of petitioner is
illusory however. The decision in
Gonzales v. Hernandez,[16]
cited by respondents is controlling. The
cases cited by petitioner would be applicable if he were exonerated of the
charge lodged against him.
Unfortunately, however, as noted in the appealed order of dismissal,
cited in his own brief and noted by us earlier, an administrative case was
commenced against him by the Auditor General for malversation
of public funds with a decision being rendered by the Commissioner of Civil
Service on February 12, 1953, finding him guilty of the charge, the penalty imposed being a fine of one month’s pay and a
reprimand, a decision from which he did not bother to appeal.[17]
Such a conviction is fatal to his claim, as the above cited
Gonzalez v. Hernandez will explain.
“The law which allows payment of back salaries in cases like this
is Section 260 of the Revised Administrative Code. A perusal of the decisions of this Court in
cases similar to the case at bar, however, show that back salaries are ordered
paid to an officer or an employee only if he is exonerated of the charge
against him and his suspension or dismissal is found and declared to be
illegal. In the case at bar, plaintiff
was not completely exonerated, because although the decision of the
Commissioner of Civil Service was modified and the plaintiff was allowed to be
reinstated, the decision ordered him to forfeit two months pay and not to be
given back salaries.”
That is all then that this appeal presents. It could not in any wise, therefore, lay any
valid claim to be considered favorably.
There could have been some plausibility for petitioner’s invocation of
the appropriate Administrative Code provision which would, on its face, lend
color to his claim for compensation.
Once the tyranny of literalness is rejected, however, to paraphrase
Frankfurter, and the decisive feature of the Gonzalez decision, which would
thus give a rational content to the language of the statutory provision,
recognized, petitioner’s case falls apart completely.
WHEREFORE, the order of dismissal of the lower court dated
November 9, 1964, is affirmed. With costs against
petitioner.
Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Capistrano, Teehankee, and Barredo, JJ., concur.
Sanchez, J., no part.
Castro, J., reserves his vote.
[1]
Republic Act No. 2260 (1959).
[2]
Ibid, Section 35.
[3]
Order of the lower court, Annex C, Brief for Petitioner-Appellant,
p. V.
[4]
Ibid, pp. V-VI.
[5]
Ibid, p. VI.
[6]
Ibid, pp. VI-VII.
[7]
On this point, the lower court relied on Rodriguez v. Tan, 91 Phil. 724
(1952); Mesias v. Jover,
97 Phil. 899 (1955); Unabia v. City Mayor, 99 Phil. 253 (1956).
[8]
Order of the lower court, Annex C, Brief for
Petitioner-Appellant, p. VIII.
[9]
Section 260, Revised Administrative Code. The
reference to Section 695 of the Administrative Code is not material; it speaks
of the administrative discipline of subordinate officers and employees, a
matter now governed by the present Civil
Service Law, which, it is worth noting, now speaks of the right of an
officer or an employee exonerated to be restored to his position “with
full pay for the period of [the preventive]
suspension.”
[10]
93 Phil. 182 (1953).
[11]
98 Phil. 563 (1956).
[12]
98 Phil. 800 (1956).
[13]
G.R. No. L-12525, February 19, 1960.
[14]
Batungbakal v. National Development Co., 93
Phil. 182, 193-194.
[15]
G.R. No. L-42525, February 19, 1960.
[16]
G.R. No. L-15482, May 30, 1961.
[17]
Order of Dismissal, Brief for Petitioner-Appellant, Annex C.