PEDRO P. CLEMENTE, PETITIONER, VS. THE COMMISSION ON AUDIT, REPRESENTED BY FRANCISCO S. TANTUICO JR., ACTING CHAIRMAN, RESPONDENT.

The question raised is whether or not petitioner is entitled to the
payment of back salaries from September 19, 1975 to April 17, 1977,
corresponding to the period he was separated from the government service
by the President of the Philippines.

Petitioner, a certified public accountant, was an employee of the
Commission on Audit, duly appointed as Deputy Auditor of the Central
Bank. He had been with the Commission on Audit since November 11, 1935
where he had held various positions. His separation, together with that
of several hundred government employees, was pursuant to Letter of
Instruction No. 309, series of 1975 and was made effective September 19,
1975 (p. 35, rec.).

In a speech delivered on the occasion of the third anniversary of the
proclamation of martial law, the President of the Philippines announced
“the beginning of a sweeping, complete and exhaustive reorganization of
the government” (Speech of President Marcos, 71 O.G. No. 39, Sept. 29,
1975, pp. 6322K – 6322L). One of those affected in the overhaul of
govern­ment machinery was the Commission on Audit where hundreds of
employees from the highest to the lowest rank were purged.

The names of all officials and employees affected by the reorganization,
or by the September, 1975 purge, as it was called, including that of
petitioner, were later published in the metropolitan dailies.

Petitioner appealed to the President. Per memorandum of Presidential
Executive Assistant Jacobo Clave dated March 28, 1977, petitioner was
informed of the President’s approval of his reinstatement as Deputy
Auditor of the Central Bank. Forthwith, by way of implementing the
presidential order, respondent directed petitioner to report to his
former office. Petitioner reported on April 18, 1977.

On November 29, 1977, petitioner filed with the Commission on Audit his
claim for the payment of his back salaries during the period he was out
of the service. He also sought clarification from the Office of the
President regarding the effect of his reinstatement in the government
service. Acting on the foregoing request for clarification, the
Presidential Executive Assistant on August 30, 1977 rendered a decision,
the pertinent portion of which reads:

“As a rule, the reinstatement of government employee whose
dismissal has been reconsidered carries with it payment of back
salaries. This however, applies only to instances where the dismissal
is the result of an ordinary administrative case. Separation from the
service under the ‘September 1975 purge’ is of a different category. The
policy of this office in the latter case is to deny backwages and other
benefits to employees ‘purged’ but subsequently reinstated, they being
considered under suspension during the period they were out of the
service. The employee concerned, however, may charge the period of
their suspension to their leave of absence if any there be. He may also
collect such other benefits to which an employee on leave is ordinarily
entitled (Italics supplied)” [pp. 45-46, rec.].

In his 1st Indorsement dated January 3, 1978, respondent denied
petitioner’s claim for back salaries strictly on the basis of the
foregoing decision of the Office of the President. Respondent’s
decision concludes:

“Accordingly, Mr. Clemente who is considered under suspension from
September 19, 1975 to April 17, 1977, the period he was out of the
service, may charge such period to his leave of absence, if there be
any, and collect only the money value of his leave credits corresponding
to the same period, subject to the avail­ability of funds and the usual
audit” (pp. 11-12, rec.).

In sustaining an affirmative answer to the question posed for
resolution, petitioner cites the provision of Section 35, Article VII of
Republic Act No. 2260, otherwise known as the Civil Service Law, which
reads:

“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.”

To reinforce his allegation, petitioner cites the cases of Abellera vs.
City of Baguio, et al. (19 SCRA 600), Tanala vs. Legaspi (13 SCRA 566)
and Sison vs. Pajo (14 SCRA 160), where this Court upheld the payment of
back salaries to re­instated employees corresponding to the period they
were deprived of work.

As correctly observed by the Solicitor General, the above provision
cited by petitioner applies only where the officer or employee concerned
is placed under “preventive suspension,” which is subsequently lifted
when the officer or employee is finally exonerated. In the case at bar,
herein petitioner is differently situated. As he has admitted, as of
September 19, 1975, when he was purged, there was no pending
administrative charge against him for any act or omission that warrants
disciplinary action under pertinent laws and rules. His separation from
the service is not considered a preventive suspension contemplated
under Section 35 of the Civil Service Law. It is not the consequence of
an administrative case, just as his reinstatement is not the result of
an exoneration from administrative charges.

Webster, Third New International Dictionary of the English Language, gives the meaning of purge:

“A purge is an act or instance of purging: a ridding (as of a
nation or party) of element or members regarded as treacherous, disloyal
or suspect.”

As We see it, the “September 1975 Purge” is part of the process of
cleaning up the government machineries, which upon the imposition of
martial law, the President had taken to task. It was noted that the
martial law in our country was not merely utilized to quell rebellion,
but also to introduce institutional reforms and changes in the New
Society, to eliminate the very causes of discontent that drive the
people to rebellion. Too well known fact is the evil that plagued
government service. Graft and corruption among government employees and
officers were too rampant in almost all offices. Numerous public
officials, using their high positions for personal gain at the expense
of the public, have not lived up to the public trust. The program of
reforms of the President in the New Society by instilling discipline on
the people, particularly those in the government service, and by weeding
out from the service employees and officials considered notoriously
undesirable were envisioned as an answer to the long felt need for
restoring the confidence of the people in the government. It is in this
context, therefore, that petitioner’s separation cannot be categorized
as preventive suspension provided in Section 35 of the Civil Service Law
which orders payment of back salaries upon reinstatement. His
separation on September 19, 1975 was for all intent a dismissal pursuant
to the urgently needed reform movement initiated by the President,
which, as a compassionate gesture, was subsequently modified as
suspension without pay — a disciplinary penalty short of dismissal.

The President, of course, did not order the “September 1975 purge” by a
snap of his fingers. As adverted to earlier, the September, 1975 purge
was made pursuant to Letter of Instruction No. 309, series of 1975 which
was issued under the authority of Section 9, Article XVII of the
Constitution, which vests upon the incumbent President the power to
remove officials and employees of the existing government. Pertinent
portion of Section 9 reads:

“Sec. 9. All officials and employees in the existing Government
of the Republic of the Philippines shall continue in office unless
otherwise pro­vided by law or decree by the incumbent President of the
Philippines x x.”

Certainly, this dissipates all doubts petitioner entertained over the
legality of his separation. Said Section 9 of Article XVII qualifies
during the transition Section 9, Article XII(B) of the Constitution
which reads:

“Sec. 3. No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law.”

At any rate, it is very significant to point out that petitioner’s
separation was based on the list submitted by then Acting Chairman
Ismael Mathay Sr. of the Commission on Audit on August 28, 1975, or
twenty-one (21) days before the purge.

The personal records of petitioner reveal that he had had an
administrative case for which, although it was dismissed, petitioner was
admonished by Mr. Mathay in his decision dated September 2, 1975, to
wit:

“After due consideration of the findings and conclusions of the
Committee created under Office Order No. 9122 dated July 24, 1974, which
this Com­mission finds to be well taken and borne out by the record of
the case, the aforementioned administrative case against you is hereby
dismissed and the matter is considered closed. However, you are hereby
sternly admonished to exercise more caution and prudence and to comport
yourself with the highest degree of responsibility in your official
actuations in order to obviate similar occurrences in the future. More
specifically, you are exhorted to henceforth exercise closer and
stricter supervision over your personnel assigned in the Currency
Retirement Division of the Central Bank, and as much as possible to make
a personal overseeing of their performance, including daily visits to
their place of assignment for purposes of physical follow-up and ocular
check-up of their respective tasks” (201 File).

To exonerate means “to exculpate, to relieve” (35 C.J.S., p. 227). It
is “to clear from accusation or blame” (Webster, Third New International
Dictionary of the English Language). The word “exonerate” “may imply complete
clearance not only from immediate charge or accusation but from
suspi­cion or attendant denigration” (Ibid.). Petitioner was not
completely exonerated of the administrative charge filed against him.
The admonition to petitioner contained in the decision in the
administrative case no more implies than that petitioner had also been
remiss in the discharge of his duties.

Being a legal act therefore on the part of the President, petitioner is
not entitled to back salaries. Even the Letter of Instruction No. 647
which was issued on December 27, 1977 in connection with the “September
1977 Purge” does not authorize payment of backwages to purged but
reinstated employees (Octot vs. Ibañez, et al., 111 SCRA 79, 83-84).

Another point. It is a settled rule in our jurisdiction that absent a
showing that the dismissal was tainted with bad faith and in grave abuse
of discretion, an employee is not entitled to backwages (Octot vs.
Ibañez, supra, citing San Miguel Corp. vs. Secretary of Labor,
64 SCRA 56). The separation of some 2,000 undesirables, which include
herein petitioner was impelled by the desire to have reforms in all
branches of the government, including the Commission on Audit where
hundreds were involved. The President had noted “that in a great number
of cases, graft and corruption in the government has been possible only
with the collusion, participation, if not at the instance, of personnel
of the Commission on Audit” (Speech of President Marcos, supra).
Before the measure for reforms was implemented, the government
undertook a performance audit of all government officials and employees
(Ibid.). As We have said earlier, the list of employees of the
Commission on Audit to be purged was submitted by Mr. Mathay on August
28, 1978, when petitioner had still a pending administrative case.

The cases cited by petitioner are not in point. The case of Abellera vs. City of Baguio, supra,
refers to administrative suspension of a cashier in the Office of the
City Treasurer of Baguio who was charged administratively for dishonesty
and gross negligence in the performance of official duty. In this
case, the cashier, when found guilty by the Civil Service Commissioner
of the charges against him, was deprived of work for two years, although
on appeal to the Civil Service Board of Appeals, the ruling was
modified by reducing the penalty imposed on him to only two months
suspension without pay.

On the other hand, the cases of Tañala vs. Legaspi, supra, and Sison vs. Pajo, supra, refer to illegal dismissal.

The case of Tañala vs. Legaspi involves the administrative suspension
and later, separation of a sanitary inspector from the government
service who was later acquitted of the criminal charges against him and
whose reinstatement was ordered by the President of the Philippines
after a reversal of the decision of the Civil Service Commissioner in
the administrative case which ordered his separation.

The case of Sison vs. Pajo deals with illegal dismissal and replacement
of an employee who, by reason of the preference established by law in
force at the time of his appointment, was entitled to keep his position
until the Commissioner of Civil Service certified to the availability of
a civil service eligible.

Petitioner relies further “as a matter of precedent” on the cases of
other purged Commission on Audit officials, particularly Jose Trinos,
former Department Manager, and Nicasio Pinto, former Assistant Auditor
of Manila, who were allegedly both paid their back salaries covering the
periods when they were purged.

The argument of the Solicitor General on this point is well taken:

“But petitioner is, as a matter of fact, differently situated than
Messrs. Trinos and Pinto. The records in the Commission on Audit
dis­close that the case of Mr. Jose Trinos like those of other graduates
of the Career Executive Service Development Program (CESDP) was taken
cognizance of by a Special Committee created under Administrative Order
No. 371 dated November 13, 1975; that upon recommendation of such
committee, President Marcos issued Administrative Order No. 375 on
December 25, 1975 whereby he reconsidered the acceptance of the
resignation of Mr. Trinos, among others, and reinstated him to his
position as Commis­sion on Audit Department Manager ‘effective as of the
date their (his) respective resignation was accepted.’ A copy of said
administrative order No. 375 is attached as Annex ‘2’. The precise
tenor of such order of reinstatement clearly signifies that Mr. Trinos
was deemed as never having been out of the service since the effectivity
of his reinstate­ment was made to retroact to the date of his
separation. Nor was he considered under suspension during the
intervening period. Thus, Mr. Trinos was clearly entitled to collect
the salaries corresponding to the said period. In contrast,
petitioner’s reinstatement was made ‘effective immediately,’ i.e., as of
March 28, 1977.

“In the case of Mr. Pinto, records in the Commission on Audit
completely belie petitioner’s allegation. For, as disclosed therein,
Mr. Pinto collected the money value of his leave credits, not his sala­ries,
corresponding to the period that he was out of the service, from
October 1, 1975 to January 5, 1977, as a result of his ‘purge.’ A
certification to this effect, issued by the City Auditor Arturo V. Uy of
Manila on March 9, 1978, is attached as Annex ‘3’” (pp. 43-44, rec.).

In the case at bar, herein petitioner who is not a Presidential
appointee, did not tender a resig­nation, but was removed. Not a
graduate of CESDP, his reinstatement was not made retroactive to the
date of his resignation. The memorandum of Presidential Executive
Assistant Jacobo Clave clearly states that reinstatement was to take
effect “immediately.” As regards the case of Mr. Pinto, suffice it to
say that as the certification will show that he collected the money
value of leave credits, it was not possible that he could still collect
back salaries for the period he was out of the service.

Because petitioner had made several pleas for reinstatement to the
President and followed up his case for no less than “fifty times”
(Letter of Appeal dated November 26, 1976, 201 File), stressing the
mental anguish and financial hardships he suffered as a result of his
separation from the service (letter dated March 11, 1977, 201 File) and
citing his 38 long years of loyal and dedicated service to the
government and his achievements in his job (Ibid.), the President
ordered his reinstatement only — without back salaries.

No back salaries, therefore, can be ordered paid to petitioner.
Petitioner, however, pursuant to the decision of the presidential
executive assistant dated August 30, 1977, may charge the period of his
suspension against his leave credits, if any, and may commute such leave
credits to money value.

WHEREFORE, THE INSTANT PETITION IS HEREBY DISMISSED. NO COSTS.

SO ORDERED.

Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.