COMMISSION ON HUMAN RIGHTS, PETITIONER, VS. CIVIL SERVICE COMMISSION AND ATTY. ELIAS V. PACETE, RESPONDENTS.

Atty. Elias Pacete, a permanent appointee since February 1, 1988
to the position of Division Chief of Region IX of the Commission of Human
Rights (CHR) based in
Zamboanga City, filed an application for optional retirement pursuant to
Rep. Act No. 1616,^[1]
dated June 17, 1989 effective July 31, 1989 because of failing eyesight. On July 7, 1989, however, Pacete sent a
notice of withdrawal of his application for retirement. On July 17, 1989, Pacete was informed by the
Chairman of the CHR through a telegram of the acceptance and approval of his
application for optional retirement effective July 31, 1989 and the appointment
of Atty. Rodrigo Roy as his successor effective August 1, 1989.

On August 25, 1989, the Government Service Insurance System
(GSIS) informed private respondent that his application for optional retirement
cannot be favorably considered due to his failure to meet the condition
provided for in Section 12 (c) of Rep. Act No. 1616,^[2] as
amended, requiring three (3) years of continuous service preceding
retirement. Consequently, the GSIS
advised the CHR to allow Pacete to continue in the service to complete the said
requirement.

Accordingly, Pacete requested the CHR that he be reinstated to
his former position with back wages and allowances and the recall of the
appointment of his successor, Atty. Roy. On October 18, 1989,
the CHR through a resolution, denied his request and instead formally charged
him with incompetence, gross inefficiency in the performance of official duty
and failure to account for public funds.^[3]

On May 27, 1990,
Pacete, after being informed of the action taken by the CHR elevated his
case to the Merit Systems Protection Board (MSPB). On August 31, 1990, the MSPB ordered the immediate reinstatement
of private respondent to his former position with payment of back wages and
other benefits allowed by law without prejudice
to the outcome of the formal charges against him.^[4]

Upon learning of the favorable decision in favor of private
respondent, Atty. Roy forthwith stepped down as Regional Field Officer on
October 1, 1990.^[5]

The CHR, through
its then Chairman, Mary Concepcion Bautista, filed a motion for
reconsideration dated October 15, 1990.^[6] On
January 10, 1991, the Board affirmed its August 31, 1990 decision.^[7]
On February 11, 1991, petitioner appealed the decision of the MSPB to the Civil Service Commission which
affirmed the decision of the MSPB on July 25, 1991.^[8]

Meanwhile, because of private respondent’s failure to settle his
accountability as Regional Field Officer in the amount of P114,758.60, the CHR
referred this matter to the Office of the Ombudsman for the filing of
appropriate criminal charges against him on July 26, 1991.

Hence this petition, the issue being whether or not public
respondent CSC gravely abused its discretion in ordering the reinstatement of
private respondent and the payment of his back wages.

It is the argument of petitioner that the disapproval of private
respondent’s application for optional retirement by the GSIS did not vest in
him the right to demand reinstatement from petitioner.^[9]
Moreover, it is the stand of petitioner that private respondent cannot be
reinstated because it has the right to summarily remove and replace incompetent
employees under Section 40 of Pres. Decree No. 807 (The Civil Service Decree).

We affirm the decision of the Civil Service Commission.

The issue in this case revolves around the optional retirement of
private respondent. The collateral
issues of his incompetence and inefficiency are questions of fact which this
court has no jurisdiction to pass upon.

We note that the charges of incompetence and inefficiency came
belatedly only after petitioner’s application for optional retirement had
already been approved. But was the
petitioner justified in refusing to allow Pacete to continue rendering service to fulfill the requirements
under Rep. Act No. 1616? We must refer
to the law in point. Petitioner cites
paragraph (d) of Section 12 of Com. Act 186 as basis for its power of removal
of its personnel on grounds of inefficiency and incompetence:

“(d) The employer concerned may request the retirement of any
such employee described in the preceding subsection who, by reason of a
disqualification, is unable to perform satisfactorily and efficiently the
duties of his position or some other position of the same grade or class as
that occupied by the employee and to which he could be assigned, but such
request shall be submitted to the Civil
Service Board of Appeals only after the
said employee had been notified in writing
of the proposed retirement. No such employee, however, shall be so
retired unless the Civil Service Board of Appeals has given him a hearing and
found him after examination that he is so disqualified. The decision of the Civil Service Board of
Appeals as to whether or not the said employee shall be retired under this
sub-section shall be final and conclusive.” (Underscoring supplied)

Indisputably, the aforequoted paragraph allows an employer to
request retirement of an employee who is unable to perform satisfactorily and
efficiently his duties, but such request must first be submitted to the Civil
Service Board of Appeals and only after said employee shall have been notified
in writing of the proposed
retirement. The above provision
recognizes the discretion of the head of office in the approval of an employee’s
optional retirement, but such discretion must be exercised without violating
the tenets of administrative due process.

We find that there was a glaring disregard of this procedure laid
down in the law. In fact, the October
18, 1989 resolution of the CHR denying him reinstatement for failure to fulfill
the three-year requirement of continuous service preceding retirement was
reached without notice and hearing. Much less was there any request for optional retirement of private
respondent from the CHR to the Civil Service Board of Appeals based on
incompetence and inefficiency. Although
he was furnished a copy of the resolution denying his application for
reinstatement with the attendant charges against him, he was not afforded the
opportunity to refute them prior to the promulgation of the said
resolution. The records disclose that
the petitioner required private respondent to answer the charges of alleged
incompetence and inefficiency in the same resolution which denied his reinstatement. The attempt to observe due process was made
only after he had been separated from the service. The refusal of the CHR to restore Pacete to his former position,
being tantamount to termination without valid cause, the MSPB decreed back wages in private respondent’s
favor.

From the facts, it is clear that prior to the withdrawal of his
application to retire optionally, Pacete’s separation from service was premised
on his desire to retire because of defective eyesight. With petitioner’s denial of Pacete’s
reinstatement, it would now
appear that the latter’s separation was due to incompetence and
inefficiency. Such cause was based on
the alleged serious administrative charges filed against him which were first
formalized by the CHR in the form of a resolution only on October 18, 1989, 2
months and 18 days after the CHR considered him separated from service due to
its acceptance of Pacete’s application for optional retirement effective July
31, 1989. Obviously, petitioner had to
devise a ground for the separation of private respondent when it realized that
its approval of his application for optional retirement failed to separate him
definitively from the service.

To aver that the real cause which precipitated the approval of
the optional retirement of private respondent was the latter’s incompetence and
inefficiency based on CHR’s proffered evidence and that its approval was an
opportune time to separate him from the service^[10]
smacks more of a subterfuge to ease him out since the charges were leveled
against him only after the GSIS had disapproved his application due to
non-fulfillment of the
three-year requirement of continuous service preceding retirement.

If petitioner were sincere in its denial of reinstatement to
private respondent, it should have filed the administrative charges beforehand,
not after it had allowed private respondent to undergo the process leading to
his retirement from the service. Granted that an employee is guilty of incompetence and inefficiency, an
employer should seasonably file administrative charges against him and marshal
the needed evidence instead of springing these on him as he is about to
retire. Such a treatment is, to put it
mildly, unfair and certainly, totally unexpected and uncalled for from a
government agency whose avowed mission is to protect and promote human rights.

Consequently, since the resolution denying reinstatement was
issued without conforming to the requirements of due notice and hearing,
private respondent’s dismissal from service was illegal. It constituted a blatant violation of
Section 46 of the Administrative Code of 1987 and Section 36 of Pres. Decree
No. 807 which provides that “No officer or employee in the Civil Service
shall be suspended or dismissed except for cause as provided by law and after
due process,” not to speak of a similar provision under Article IX B, Sec.
2 (3) of the 1987 Constitution on the Civil Service Commission.^[11]
If petitioner wishes to dismiss private respondent for cause, the latter must
be allowed to return to his previous position so that he may avail himself of
the opportunity to refute the charges imputed to him. It should be pointed out, however, that he may not be able to fulfill the three-year
requirement if the CHR succeeds in proving the charges of incompetence and
inefficiency through a hearing as laid down in paragraph (d) of Section 12 of
CA 186.

In conclusion, petitioner argues that considering the seriousness
of the charges against private respondent, it is justified in summarily
dismissing the latter based on Section 40 of Pres. Decree No. 807, known as the
Civil Service Decree.^[12]
Petitioner can no longer seek refuge in this legal provision since the same has
been repealed by Rep. Act No. 6654.^[13]

WHEREFORE, the decision of the Civil Service Commission
dated August 31, 1990 is AFFIRMED in toto.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Nocon, Bellosillo, Quiason, Puno, and
Vitug, JJ., concur.

Melo, J., in the result.

Griño-Aquino, J., on official
leave.

^[1]
Entitled, “An Act Further Amending Section Twelve (12) of Commonwealth
Act, Numbered One Hundred Eighty Six (186), as amended, by prescribing two
other modes of retirement and for other purposes.”

^[2]
(c) Retirement is likewise allowed to any official or employee, appointive or
elective, regardless of age and employment status, who has rendered at least
twenty years of service, the last three years of
which are continuous… (Underscoring ours)

^[3]
CHR Resolution, No. A89-130, Rollo,
pp. 35-38.

^[4]
Rollo, pp. 45-48.

^[5]
Rollo, p. 129.

^[6]
Rollo, pp. 49-50.

^[7]
Rollo, pp. 51-54.

^[8]
Resolution No. 91-903, Rollo, pp. 29-32.

^[9]
Rollo, p. 181.

^[10]
Rollo, p. 178.

^[11]
“No officer or employee of the civil service shall be removed or suspended
except for cause provided by law.”

^[12]
Sec. 40. Summary Proceedings. –
No formal investigation is necessary and the respondent may be immediately
removed or dismissed if any of the following circumstances is present:

x x x     x
x x     x x x

a) When the charge is serious and
the evidence of guilt is strong.

x x x     x
x x     x x x

^[13]
Entitled an Act Repealing Sec. 40 of Pres. Decree No. Eight Hundred Seven
otherwise known as the Civil Service Decree. Approved May 20, 1988.