EGMIDIO T. PASCUA, PETITIONER AND APPELLANT, VS. HON. PEDRO TUASON, ETC., RESPONDENT AND APPELLANT.

Both parties to this case have appealed from the decision of the
Manila court of first instance, in a mandamus proceeding, ordering
petitioner’s reinstatement to his former Government position^[1]
with back salaries, unless he has been suspended or should be suspended
by the respondent Secretary of Justice by virtue of the charges newly
filed against him.

Such decision was rendered upon a stipulation of facts, the pertinent portions of which read as follows:

“2. On December 1, 1937, petitioner was appointed to
the Division of Investigation (now National Bureau of Investigation) of
the Department of Justice and rendered active service since that date,
so much so that on January 6, 1949, he was appointed
District-Agent-at-large at a salary of P4,800.00 per annum;

* * * * * * *

4.
Sometime on May 14, 1951, in connection with (his) assignment in the
PRISCO office at Cebu City, petitioner * * was accused in Criminal Case
No. V-2971 of the Court of First Instance of Cebu, of the crime of
falsification of public documents, and on May 18, 1957, the then
Secretary of Justice issued the following order of suspension against
petitioner:

‘In view of the information
filed against you, and upon the recommendation of the Assistant
Director of the National Bureau of Investigation, you are hereby
suspended from office, effective upon receipt hereof, and pending the
termination of the case filed against you.’

5.
While under such suspension, another criminal case No. V-2999 of the
Court of First Instance of Cebu was filed against petitioner jointly
with Isidro Kintanar and several others, for “grave coercion”;

6.
In both cases, petitioner was convicted by the Court of First Instance
of Cebu but in both cases also, he was acquitted by the Court of
Appeals; the acquittal in the Criminal Case for falsification of public
documents became final on April 8, 1953, and his acquittal in the
criminal case for grave coercion on October 8, 1954;

7. In
view of these acquittals, on October 18, 1954, petitioner re quested
the respondent to reinstate him and to order the payment of his back
salaries, but respondent has refused and still refuses to do so for the
following reasons. On September 6, 1954, before his acquittal of the
charge of grave coercion by the Court of Appeals, petitioner was
charged administratively with acts unbecoming of a district agent,
because during his suspension from office mentioned in the preceding
paragraph 4 hereof, he managed a corporation called the Central
Information and Advisory Service, Inc., which is engaged in gathering
information of all kinds and supplying the same to interested parties
for a fee or price. Again, on October 15, 1955, the Director of the
National Bureau of Investigation filed other administrative charges
against the petitioner for oppression, dishonesty and negligence based
upon the facts subject of the criminal cases referred to in the
preceding paragraphs 4 and 5 hereof. All said administrative charges
are still being heard.”

The judge opined that after his acquittal in the criminal cases for
falsification and coercion, the suspended officer became entitled to
reinstatement; but as there were other charges for which he might have
been or could be suspended, said judge added as a precautionary
measure, the proviso about eventual suspension by the Department Head.

Against this condition or proviso the petitioner took this appeal,
contending it might imply respondent’s power to suspend him now—i. e. keep him out—by virtue of the new charges, without first
reinstating him and paying him his back salaries. We think it does
imply such power; and the question remains whether the judgment, for
that reason, becomes legally objectionable. In view of the
administrative charges, the Secretary had the prerogative of
suspension, or, more correctly, of continuing the suspension previously
decreed. Having failed to perceive the second alternative, and
concluding that the suspension on account of the criminal charges
should be ended, the court required his reinstatement, with the saving
clause, however, that would avoid encroachment upon the Department’s
power to take action on account of the two administrative charges, the
seriousness of which may be here outlined. According to the first,
about gathering information, Pascua imparted confidential matters in
the files of the Bureau to private parties, for a price^[2]; and the second contains the following:

I. OPPRESSION

“In that
Atty. Pascua together with his armed companions, on 9 March 1951, at
the Lahug Airport Cebu prevented and cause to be detained, without
warrant of arrest and through force, threat and intimidation, four
PRISCO agents from boarding a PAL plane bound for Manila (See Annex G).
It appears that these four PRISCO agents had in their possession papers
linking Atty. Pascua with the Cebu Flour Scandal. On the said date,
these four PRISCO agents were bound for Manila to report to their home
office. Evidently to suppress evidence against him and under color of
law, he wilfully and unlawfully prevented the flight of said PRISCO
agents thus subjecting them to greater hardships than are necessary for
the proper enforcement of the law.”

II. DISHONESTY

“a.
In that Atty. Pascua, while a District Agent of Cebu and at the same
time detailed with the PRISCO office thereat in 1951 to assist in the
screening of applications for flour allocation, did then and there,
wilfully and contrary to law, facilitated or caused to be facilitated
the approval of an application for flour allocation he knew or had
knowledge to be faked by stating to the PRISCO officials that the
authority for the said flour allocation was in their NBI files when in
fact and in truth there was no such authority. (Annex H. Statement of
Isidro Yuson, then Auditor of the PRISCO Branch in Cebu) thus causing
prejudice to the government and to the persons who were by law entitled
to the allocation.

b. In that Atty. Pascua, during his
incumbency as District Agent of Cebu in 1951 and while detailed with
the PRISCO Office thereat, did then and there, contrary to law,
collected the amount of P3.00 for every bag of flour he screened and
approved. (See Annex H, Statement of Isidro Yuson, Auditor, PRISCO
Branch, Cebu).”

Referring to these charges, counsel for respondent submitted these propositions to the trial judge: (a)
the new charges against petitioner being quite grave, could give ground
for suspension of the petitioner (if he were actually serving); (b)
in the case thereof, the Secretary thought it unnecessary to order a
suspension of Pascua, as he was already under suspension since May
1957; and (c) the Secretary merely declined to reinstate. Said
judge, as already explained, believed the suspension of May 18, 1957
had already served its purpose, inasmuch as Pascua had been acquitted
from the criminal charges; wherefore, he ordered reinstatement.
However, realizing the seriousness of the new accusations, he added the
proviso here in question.

The court thereby practically held that, to keep the petitioner out
of the government service, it was essential for the Department
Secretary to issue another order suspending him from office. We think,
however, that such suspension besides being an empty formality—as
Pascua is under suspension—would require an incongruous act, i. e.,
suspending one already under suspension. On the other hand, as the
Solicitor-General observes, the Secretary’s refusal to reinstate, as
explained in his answer to this petition, practically amounts to a
determination to suspend Pascua, should such “suspension” be still
necessary at this stage of the proceedings. So, the court’s
determination of the issue involved herein would merely become academic,^[3] since it would be within the power of the respondent to frustrate any order of reinstatement.

Now then, it appearing that there were sufficient reasons for the
respondent not to call petitioner back into the Government service; and
bearing in mind the courts’ hesitation to intervene in the
administrative practices of the executive department^[4], and the principle that mandamus may only be issued to enforce a “clear and certain” legal right^[5],
we reach the inevitable conclusion that this special civil action may
not be sustained. Hence the request for mandamus must be, and is hereby
denied, with costs against petitioner. So ordered.

Paras, C. J., Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, and Gutierrez David, JJ., concur.

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^[1] Agent, National Bureau of Investigation.

^[2] As these activities
occurred during the period he was under suspension petitioner says: it
is illegal to deny me salary in the Government and at the same time
prevent me from earning money at the job I know best. But the charge is
that he abused his connection with the N. B. I. by surreptitiously getting classified matter therein and selling it to private parties.

^[3] Cf. Banco Nacional Filipino vs. Bejasa, 62 Phil., 957.

^[4] Case vs. Board of Health, 24 Phil., 250.

^[5] Zamora vs. Wright, 53 Phil., 613; Sanson vs. Barrios, 63 Phil., 198; Pabico vs. Jaranilla, 60 Phil., 247.