INOCENCIO GONZALES, PETITIONER, VS. HONORABLE CIVIL SERVICE COMMISSION, RESPONDENT.

At stake is the 36 year career service of the petitioner in
government. For losing his job without
proper notice, petitioner seeks the protection of due process, the guaranty
against acts of arbitrariness of government.^[1] His
plea is not without merit.

It took petitioner Inocencio Gonzales thirty six (36) years to
ascend to his position of Administrative Officer III of the Agricultural
Training Institute (ATI), an agency of the Department of Agriculture. On his 25th year of service, he received a
merit award recognizing his continuous,
dedicated, and faithful service in the government. On his 30th year, he repeated the feat. His record of service is without any wart of
malfeasance or misfeasance in office.

Early in 1990, certain problems beset his two (2) children in the
United States. He had to fly to the
United States to attend to his children. He applied for and was granted leaves with pay from February 2, to July
16, 1990. After six (6) months,
however, the family problem had not gone away and he decided to spend more time
with his children.

On June 25, 1990, petitioner wrote to the Director of ATI
requesting approval of a leave without pay starting from the second week of
July to December 31, 1991. He cited as additional
reason his desire to take advantage of “x x x a physical check-up free of
charge due to my childrens’ medical plan benefits”. The letter was personally delivered by
petitioner’s wife. It carried his
address in the United States at 149 Declaration Way, San Jose, California,
95116.

For unknown reason, the Director of ATI did not act on the
letter-request. It was neither approved
nor disapproved. Three (3) months
later, ATI started acting adversely on petitioner’s request. On September 5, 1990, Atty. Ildefonso del
Rosario, ATI’s Assistant Director and OIC, wrote to petitioner declaring him
absent without official leave for more than thirty (30) days and warning him
that should he not report within five (5) days from receipt of the letter, he would
be dropped from the rolls. The letter
was addressed at 30 Ventura St., BF Homes, Quezon City, petitioner’s
house. The letter, however, was
returned to sender (ATI) on September 27, 1990.^[2]

What ATI did was to publish a notice of similar import in the October
4, 11 and 18, 1990 issues of the Philippine Journal, a newspaper of
general circulation. On October 24,
1990, ATI dropped petitioner from its rolls. He was not furnished a copy of the order. When he came back from the United States and reported for work on
November 19, 1990, he found out that Mercedes Puruganan had been appointed to
his position. By himself, he protested
to the Civil Service Commission on December 14, 1990. His letter-protest was endorsed to the Merit Systems Protection
Board (MPSB) for appropriate action. On
April 30, 1991, the Board ruled that petitioner was duly notified before he was
dropped from the rolls. His appeal was
dismissed. His motion for
reconsideration was rejected.

Petitioner appealed to the Civil Service Commission. Again, petitioner lost. In its Resolution No. 92-640, dated May 7,
1992, the Commission held: (1) that the
requirement of notice was “substantially” complied with by the ATI,
and (2) that the failure of ATI to act on his request for leave without pay was
of “no moment”.

Undaunted by his legal setbacks, petitioner filed this petition
for certiorari. He raises the
following arguments:

I. GRAVE INJUSTICE WAS COMMITTED BY SUPPOSEDLY BEING ABSENT
WITHOUT LEAVE (AWOL), WHEN HE HAD ACCRUED VACATION AND SICK LEAVES AND WAS,
THEREFORE, STILL SERVING ON OFFICIAL TIME.

II. GRAVE ABUSE OF DISCRETION WAS COMMITTED WHEN PETITIONER, AN
OFFICER WITH THE RIGHT OF SECURITY OF TENURE, WAS DROPPED FROM THE ROLLS WHICH
IS TANTAMOUNT TO REMOVING HIM WITHOUT CAUSE.

III. GRAVE ABUSE OF DISCRETION WAS
LIKEWISE COMMITTED WHEN PETITIONER WAS SUMMARILY, HASTILY AND INORDINATELY
DROPPED FROM THE ROLLS AND HIS REPLACEMENT HURRIEDLY APPOINTED WITHOUT THE
OBSERVANCE OF THE REQUISITE DUE PROCESS.”

We ordered the Solicitor General to file the Comment in defense
of the respondent Civil Service Commission. In his Comment dated September 14, 1992, Solicitor General Raul Goco^[3]
conceded that petitioner was denied due process and, hence, illegally
dismissed. The Civil Service Commission,
thru its Legal Department, then defended itself. In its own Comment dated December 14, 1992 it contended that
petitioner had “constructive notice” of the letter ordering him to
return to work and which he failed to heed.

We find for the petitioner.

We need not be unduly detained by the first two contentions of
petitioner which are manifestly devoid of merit. Anent the first argument, WE note that in all the proceedings
below, petitioner never took the position that he still had vacation and sick
leaves, hence he could not be declared AWOL. His new posture is also diametrically opposed to his letter of June 25,
1990 where he requested leave without pay precisely because he had no more
vacation and sick leaves. In any event,
it is too late and forbidden for petitioner to alter his theory especially when
the new theory rests on allegations not borne by the records of the case. Just as untenable is petitioner’s defense of
security of tenure espoused in his second argument. It ought to be self-evident that security of tenure can not be a
shield against absences without proper approval by the authorities. Leaves are matters of private convenience
and cannot prejudice public service. Their approval is discretionary as it depends on the higher needs of public
service.

Be that as it may, petitioner’s third argument where he invokes
the protection of the due process clause of the Constitution should be
sustained. CSC Memorandum Circular No.
2, Series of 1985 is the governing rule on notice before an employee can be
dropped from the rolls due to absence without leave, viz:

“4. The agency should notify in writing the
employee, who is absent without leave (AWOL) for thirty (30) days, to report
within five (5) days from receipt of notice, otherwise, he shall be dropped
from the rolls.”

The Circular does not specifically state
where the notice shall be sent. In the
case at bar, petitioner’s residence is at 30 Ventura St., BF Homes, Quezon
City. Nonetheless, in 1990, petitioner
left for the United States to attend personally to the problems of his
children. When petitioner filed his
leave of absence without pay, ATI knew that petitioner was staying at 149
Declaration Way, San Jose, California in 1992. The letter of June 25, 1990 of the petitioner requesting this leave
clearly carried his address in the United States. The records do not show that the officials of ATI denied
knowledge of petitioner’s correct address. Despite this knowledge, however, the letter of Septem­ber 5, 1990
written by Atty. Ildefonso del Rosario, ATI’s Asst. Director and OIC, directing
petitioner to return to work within five (5) days, otherwise, he would be
dropped from the rolls was inexplicably mailed to his house at 30 Ventura St.,
BF Homes, Quezon City. The letter was
not received by petitioner. Per
certification of Mr. Jesse Santos, Postmaster of the Bureau of Post of Quezon
City, this letter “x x x was
returned to sender, the Agricultural Training Institute on September 27, 1990
and received by one Victoria Lim, authorized representative.”

It is the ruling of the respondent Civil Service Commission that
the sending of the said notice to the residence of petitioner constitutes
“substantial” compliance with the demands of due process. The ruling would have some allure if the
address of petitioner in the United States was not known to the officials of
ATI and if his Philippine address was his last known address. But as stressed above, they knew of
petitioner’s exact address in the United States and there appears no impediment
for them to send the notice in this correct address. Petitioner, be it noted, was moving from one residence to another, to avoid service of legal
notices. They were aware that
petitioner was not momentarily staying in his address in Quezon City where he
could receive said notice. Under the
circumstances, it is grave abuse of discretion for the respondent Commission to
hold that there was “substantial” compliance with the notice
requirement of due process. The
disputed ruling cuts too deeply on petitioner’s right to continue his
employment in the government and unduly dilutes the protection of due
process. To be sure, the cavalier
attitude of respond­ent Commission is deplorable considering that on line is
the thirty six (36) long years
of faithful and dedicated service to the government of the petitioner. Nothing less than strict compliance with the
demands of due process should have been demanded by the respondent Commission
from the officials of ATI in light of the equities of the case. Nor can we give our concurrence to the
further ruling of the respondent Commission that the denial of due process to
the petitioner was cured by the publication of said notice in three (3) issues
of the Philippine Journal. Notice by publication might have been proper if the address of
petitioner were unknown. Since the
officials of ATI knew the where­abouts of petitioner, they have no legal
warrant to notify him thru the newspapers.

There are other acts, both covert and overt, which show that ATI
officials did not accord fair treatment to the petitioner. Petitioner filed his request for leave
without pay on June 25, 1990 while still in the United States. Though petitioner has no right to presume
that his request would be granted, nonetheless, it was no less a duty on the part
of officials of ATI to act immediately on the request, if only because
petitioner was abroad and needed reasonable time and resources to return to the
Philippines on a five (5) day call. For
reasons not divulged in the records, they sat on the request. Only on September 5, 1990, did they declare
that petitioner had been absent without official leave. In the said letter too, Atty. del Rosario
ordered petitioner to return to work within five (5) days allegedly due to the
“exigencies of the service.” Nonetheless, Atty. del Rosario did not
explain why all of a sudden the “exigencies of the service” required
the immediate return of the petitioner. If the “exigencies of the service” were real, the Court
wonders why he did not deny forthwith the request of petitioner for leave
without pay made as far back as June 1992. Worse still, the order dropping petitioner from the rolls’ was never
sent to him. Petitioner did not also
know he had been replaced till he returned to the Philippines on November 16,
1990. In a setting of scarcities, it is
bad enough to lose a job; it is worse, if it is taken away by government itself
without due process of law. Our Constitution abhors such
arbitrariness.

IN VIEW WHEREOF, the petition for certiorari is
granted and Resolution No. 92-640 dated May 7, 1992 of the respondent Civil
Service Commission is reversed and set aside. The Director of the Agricultural Training Institute is ordered to
reinstate petitioner to his position
as Administrative Officer III or its equivalent
without loss of any right or privilege.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Grino-Aquino, Regalado,
Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason, and Vitug, JJ., concur.

Feliciano, J., on leave.

^[1]
Petitioner seeks to set aside Resolution No. 92­-640 dated May 7, 1991 of the
CSC.

^[2]
See Annex “G”, Petition, Certification dated June 26, 1991 of
Postmaster Jesse Santos of Quezon City.

^[3]
He was assisted by Asst. Sol. General Deusdedit B. Quijano and Solicitor Renan
E. Ramos.