G.R. No. L-22062. March 29, 1968
GREGORIO Y. ROMERO, PETITIONER AND APPELLEE, VS. THE HONORABLE MUNICIPAL MAYOR OF BOLJOON, CEBU, ELIAS GOMERA, ET AL., RESPONDENTS AND APPELLANTS.
DIZON, J.:
Appeal taken by Elias Gomera, Municipal Mayor of Boljoon, Cebu,
the Municipality of Boljoon,
its Council and Treasurer, from the following judgment of the Court of First
Instance of said province in Civil Case No. R-7848:
“In view thereof, judgment is hereby rendered:
(1) Granting the writ of mandamus in the
first cause of action, directing respondents to reinstate the petitioner
immediately in his position as Chief of Police of Boljoon, Cebu, subject to the
result of his appeal in Administrative Case No. 2, now pending in the Civil
Service Commission;
(2) Declaring null and void the proceedings and
Resolution of the Municipal Council of Boljoon in Administrative Case No. 3
dismissing the herein petitioner for the failure to pay his ‘just debt’ to the
Villarica Finance Company; and
(3) Dismissing the petition for the writ of
prohibition in Administrative Case No. 4, and directing the respondent either
to dismiss the same or to proceed with it in accordance with the opinion
heretofore stated.
No costs and damages.”
The facts necessary to decide this appeal are the following:
Appellee Gregorio Y. Romero, a civil service eligible, was
appointed Chief of Police of the Municipality
of Boljoon, Cebu,
on January 23, 1954. On August
16, 1962, the Municipal Mayor of Boljoon, suspended him from office
following the filing of Administrative Case No. 2 against him with the
Municipal Council for serious irregularities in the perĀformance of official
duties. After several postponements of
the hearing at Romero’s instance, the Council, on November 16, 1962, approved its Resolution No. 66 finding
him guilty and dismissing him from office effective August 16, 1962 – the date of his preventive
suspension. Romero then appealed to the
Commissioner of Civil Service.
In a letter dated December
14, 1962 addressed to the Municipal Mayor, Romero, thru counsel,
asked for his immediate reinstatement, invoking the provisions of Section 3 of
Republic Act No. 557 limiting the period of preventive suspension of provincial
guards, city police and municipal police to sixty days. The Mayor denied the request on the 18th of
the same month and year.
Meanwhile, on August 23,
1962, Administrative Case No. 3 was filed with the Municipal
Council by the Villarica Finance Company against Romero for alleged wilful
neglect to pay his just obligation to it in accordance with Section 1135 of the
Civil Service Manual, etc. Romero moved to dismiss the comĀplaint on the
grounds that the Municipal Council had no jurisĀdiction to try the same as the
charges were not filed by the Municipal Mayor as required by law and that the
subject-matter thereof was not one of the grounds recognized by Republic Act
No. 557 for the suspension and/or removal of members of the Municipal
Police. The Council denied the motion
and proĀceeded ex-parte to hear the case upon failure of Romero to appear at
the hearing. On December 17, 1962, the Council approved
Resolution No. 75 ordering Romero’s dismissal as Chief of Police of Boljoon, Cebu.
On October 16, 1962, still another administrative complaint – the
fourth – was filed by the Municipal Mayor with the MuniĀcipal Council against
Romero for alleged gross misconduct and dishonesty in the performance of
official duty in that the latter refused to record in the police blotter a
complaint for destruction of property filed by a certain Salvacion Sestoso
against one Nabor Derama and failed to take any action thereon. Again, Romero moved to dismiss the case on
the ground that he, being the Chief of Police and deputy of the Provincial Fiscal
in the prosecution of criminal cases, was vested with discretion to file or not
to file criminal complaints. The
Municipal Council denied the motion and proceeded to hear the complaint. As Romero failed to appear at the hearing,
the Council resolved to postpone the same indefinitely until the final
determination of Administrative Case No. 2 mentioned heretofore.
On January 26, 1963, Romero – hereinafter referred to as appellee
– filed the present petition for a writ of mandamus and/or certiorari
and prohibition, with damages, with the Court of First Instance of Cebu against
appellants to secure judgĀment ordering the Municipal Mayor of Boljoon to
reinstate him in office; declaring null and void Resolution No. 75 of the
Municipal Council of Boljoon in Administrative Case No. 3; prohibiting said
Municipal Council from further proceeding with the hearing in Administrative
Case No. 4; and for the recovery of his salary from October 16, 1962 – the date
appellee claims he should have been reinstated in office – plus damages and
attorney’s fees.
In due time, respondents-appellants filed their answer, in which,
after making denials and admissions of fact, they interposed the following
affirmative defenses: (1) that the petition did not state facts constituting a cause
of action in favor of petitioner (appellee herein); that the decision of the
Municipal Council was rendered within sixty days from the date of appellee’s
preventive suspension, and that whatĀever delay there was thereafter was due to
his own act of appealing to the Commission of Civil Service; and that appellee
had not exhausted all the administrative remedies available to him at law.
After due trial, the lower court rendered the appealed judgment.
From the assignment of errors made in appellants’ brief it
appears that the only issue to be resolved in this appeal is whether or not
appellee is entitled to reinstateĀment pending final determination of his
appeal to the ComĀmissioner of Civil Service.
It is an admitted fact that appellant Municipal Council’s
decision in Administrative Case No. 2 was rendered within the sixty-day period
prescribed by the provisions of Republic Act No. 557 from the date of
appellee’s suspension from office, after deducting the delay chargeable against
the latter. The lower court, however,
held that from the time appellee was notified of the decision of the Council
and he appealed to the Commissioner of Civil Service, he was entitled to reĀinstatement
after the lapse of the period of sixty days purĀsuant to Section 35 of Republic
Act 2260 (Civil Service Act of 1959) and the doctrine laid down in Garcia vs.
the Executive Secretary, et al. G. R. L-19748, September 30, 1962.
The question to be resolved is not new. In Alacar vs. City Mayor etc.,[1]
construing the provisions of Section 3 of Republic Act No. 557, We said the
following:
“This question has already been resolved in the affirmative in
the case of Martinez vs. MuniĀcipal
Mayor of Labason, et al., G.R. No. L-11888, April 30, 1958, wherein this Court made the followĀing
pronouncement:
‘It will be noticed, however, that on the sixtieth day the council
voted by resolution to remove the petitioner from his position. Such resolution would have deĀcided the
matter finally if petitioner had not filed a notice of appeal to the CommisĀsioner
of Civil Service. Therefore, his case was not finally disposed of because of
his own voluntary act of appealing, which amounted to a petition for
review. Such petition excused any delay
in the definite disposition of the charges.
‘Indeed, it would be contrary to the spirit of mandamus proceedings
to compel reinstatement of suspended officers after the latter had been found
guilty and dropped from the service by the competent official body. Such suspended official, it may be said, did
not have a clear legal right (to return) enforceable by mandamus. And the court’s discretion should not be
exercised in a way injurious to public interest; nor should mandamus
issue where it would not promote substantial justice.'”
More recently We decided the case of Kordovez vs. Carmona etc.,
G. R. No. L-21473, October 31, 1967,
which is on all fours with the present, the pertinent portions of our decision
being as follows:
“Petitioner Perfecto D. Kordovez was a desk sergeant of the
police force of the City of San Carlos,
Province of Negros
Occidental, with the required civil service
eligibility. Having been charged
administratively by the respondent mayor for violation of law or duty, he was
suspended from office on September 19,
1962.
“After due investigation of the charges, the Municipal Board,
on October 24, 1962,
rendered a decision dismissing him from the service. ThereĀupon and within the period provided for
in Republic Act No. 557, he appealed to the Commissioner of Civil Service.
“Sixty days after the date of his suspension (September 19,
1962) petitioner asked the resĀpondent mayor to order his reinstatement pending
appeal, invoking the provisions of Section 35 of Republic Act No. 2260,
otherwise known as the Civil Service Act of 1959, in relation to Section 3 of
Republic Act No. 557, and our ruling in the case of Paulino Garcia vs. the Hon.
Executive Secretary, et al. Respondent
having refused to do so, the petitioner filed with the Court of First Instance
of Negros Occidental a Petition for Mandamus to secure an order for his
reinstatement, to recover back salaries from November 19, 1962, the date which he claimed to be the
end of his 60-day preĀventive suspension, and damages (Civil Case No. 6862).
“After due trial, however, the lower court rendered its
decision dismissing the petition. Hence,
this appeal.”
To secure a reversal of the abovequoted decision, KorĀdovez
relied anew upon the provisions of Section 35 of ReĀpublic Act 2260, in
relation to Section 3 of Republic Act, No. 557, claiming that thereunder he was
entitled to reĀinstatement because the Commissioner of Civil Service had not
decided his appeal within the period of sixty days. We found this contention to be without merit
and said the following:
“The law applicable to the present case is Republic Act No.
557, Section 3, and not the one relied upon by the petitioner. ConĀtrary to his
view, We are of the opinion that no provision of the latter had repealed the
former. Republic Act No. 2260 is a
general law which covers public officials and employees, civil service
eligibles or not, while Republic Act No. 557 is a special law which applies
only to provincial guards, city and municipal policemen with civil service
eligibility. In case of conflict between
the two kinds of legislative enactment, the rule is that the one general in
character shall not be deemed to have repealed the special law unless that is
expressly and clearly provided in the former.
The reason for this is that the special law evinces the partiĀcular legislative
intent more clearly.
“That Section 3 of Republic Act No. 557 was not repealed by
Section 35 of Republic Act No. 2260 may also be inferred from the fact
that.Section 16 of Republic Act No. 4864, otherĀwise known as the Police Act of
1966 – which took effect on September 8, 1966 – reproduces the last part of
Section 3 of Republic Act No. 557 as follows:
“x x x x x x x x x Provided, however, That if the delay
in the disĀposition of the case is due to the fault, negligence, or petition of
the respondent, the period of the delay shall not be counted in computing the
period of suspension herein provided.
The respondent shall be entitled to his salary for the period of
suspension upon exoneration.’
“In connection with such provision, We have held heretofore
that although under Republic Act No. 557 a suspended policeman is entitled to
reĀinstatement if the administrative case against him has not been finally
decided within sixty (60) days after his preventive suspension, such
reinstatement can not be demanded if the delay in the disposition of his case
is due to his own fault or petition as when the cause of the delay was the
appeal to the Commissioner of Civil SerĀvice taken by him (Alacar vs. City
etc., G. R. No. L-10020, December 29,
1958; Martinez vs.
Municipal Mayor etc. G.R. No. L-11868, April
30, 1958).”
UPON ALL THE FOREGOING, judgment is hereby rendered
reversing the decision appealed from in so far as it directs the appellants
herein to reinstate appellee immediately “to his position as Chief of
Police of Boljoon, Cebu, subject to the result of his
appeal in Administrative Case No. 2”.
With costs.
Reyes, Acting C.J., Makalintal, Zaldivar, Sanchez, Angeles, and Fernando, JJ., concur.
Bengzon and Castro, JJ., did
not take part.
[1]
G. R. No. L-10020, December 29, 1958.