AMANDA V. CABIGAO, PETITIONER AND APPELLEE, VS. AMADO DEL ROSARIO, ET AL., RESPONDENTS AND APPELLANTS.

This is an appeal taken by Amado del Rosario, as Commissioner of
Civil Service. Dominador R. Aytona, as Secretary of Finance, Eleuterio
Capapas, as Commissioner of Customs, and Pedro Gimenez, as Auditor
General, from the decision of the Court of First Instance of Manila in
special civil action No. 44193 ordering them to reinstate appellee,
Amanda V. Cabigao, “in the service of the Bureau of Customs” but
assigning her “to perform purely clerical duties pending the decision
of the Civil Service Board of Appeals of the administrative case
against her.”

Appellee Amanda V. Cabigao was appointed as Customs Examiner in the
Appraisers’ Division of the Bureau of Customs, Manila, in 1957. On May
16, 1958, having been charged with “grave neglect of duty and acts
prejudicial to the best interest of the service”, she was suspended
from office by the Secretary of Finance, through the Commissioner of
Customs. However, on July 21, 1959, she was reinstated, pursuant to the
provisions of Section 35 of the Civil Service Act of 1959, but only to
perform clerical duties and payment of her salary during the period of
suspension was ordered withheld pending final determination by the
Commissioner of Civil Service of the charges filed against her
(Administrative Case No. R-18519).

On November 16, 1959, after a formal investigation of the charges,
the Commissioner of Civil Service found appellee guilty of gross
negligence in the performance of official duty and considered her
“resigned effective on her last day of duty with pay, without prejudice
to reinstatement to another office.” She received notice of said
decision on December 7, 1959. In a letter addressed to the Commissioner
on the same date, she requested that its enforcement or execution be
stayed because she was filing a motion for reconsideration. Her request
having been denied by the Commissioner, she filed a motion for
reconsideration of the decision, which was likewise denied. Notice of
the denial was served on her on March 17, 1960 and on the following day
she filed with the Commissioner a written notice of appeal from the
decision to the Civil Service Board of Appeals, at the same time
renewing her request for reinstatement pending appeal invoking the
decision in the case of Tan vs. Gimenez, et al., 107 Phil., 17; 57 Off.
Gaz. (12) 2130, but on September 2, 1960, the Secretary of Finance
denied the said request.

On September 12, 1960 appellee filed the present action for mandamus
in the Court of First Instance of Manila (Civil Case No. 44193) praying
that appellants Commissioner of Civil Service and Secretary of Finance
be ordered to reinstate her immediately to her former position pending
her appeal in Administrative Case No. R-18519; that appellants be
ordered to pay her monthly salary from December 8, 1959 until actual
reinstatement and every month thereafter during the pendency of her
appeal in the aforesaid administrative case; and that appellants
Commissioner of Civil Service and Secretary of Finance be ordered to
pay, jointly and severally, the costs of suit.

On March 3, 1961, the court rendered the appealed decision, the dispositive portion of which reads as follows:

“Wherefore, judgment is hereby rendered in favor of
the petitioner and against the respondents, commanding the later to
reinstate immediately the petitioner in the service of the Bureau of
Customs, but the petitioner shall be assigned to perform purely
clerical duties pending the decision of the Civil Service Board of
Appeals of the Administrative case against her.

“The petition
is dismissed, insofar as it asks that the respondents be ordered to pay
the monthly salary of the petitioner from December 8, 1959, until
actual reinstatement and every month thereafter during the pendency of
her appeal, in Administrative Case No. R-18519”.

The issue to be decided in this appeal is whether or not a civil
service employee who has appealed to the Civil Service Board of Appeals
from a decision of the Commissioner of Civil Service finding him guilty
of gross negligence in the performance of official duty and considering
him as resigned effective on his last day of duty with pay, is
entitled to remain in the service during the pendency of his appeal.

The burden of appellee’s contention is that while the decision of
the Commissioner of Civil Service is final in character, it is not
executory from the beginning but appealable, and that upon the
perfection of an appeal therefrom, it must be deemed vacated and its
execution stayed. Upon these premises and invoking our decision in Tan
vs. Gimenez (supra), she contends that her removal after the
decision—notwithstanding her appeal—was unlawful and that, therefore,
she is entitled to immediate reinstatement.

On the other hand, appellants contend that a decision of the
Commissioner of Civil Service finding a government employee guilty of
misconduct is final and executory from the beginning, in accordance
with an opinion rendered by the Secretary of Justice in 1940 construing
the provisions of Executive Order No. 39 in connection with Section 695
of the Administrative Code; that appellee’s view would compel the
government to retain in its service an employee found unfit for the
public service, during all the time that his appeal remains pending in
the Civil Service Board of Appeals, thus encouraging frivolous appeals
and exposing public interest to untold risks and prejudice; that, on
the other hand, while the view of the government affords protection to
public interest, it results in no substantial prejudice to the employee
concerned because if, on appeal, he is exonerated, he will be entitled
not only to reinstatement but to full relief in the form of back
salaries and other privileges to his position appertaining.

It is manifest that Section 35 of Republic Act No. 2260 commonly
known as the Civil Service Act of 1959, providing for the compulsory
reinstatement of an employee under preventive suspension does not apply
to the present case because it governs only those “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 statute mentioned above contains no clear and express provision
decisive of the issue before us. It is true that its Section 16,
subsection (i) vests on the Commissioner of Civil Service final
authority to pass upon the removal, separation, and suspension of all
permanent officials and employees in the competitive or classified
service, but this provision is clearly subject to that of Section 36 of
the same act to the effect that the decision of the Commissioner of
Civil Service in an administrative case involving discipline of
subordinate officials and employees is appealable to the Civil Service
Board of Appeals within thirty days from notice.

On the other hand, we said in the case of Tan vs. Gimenez (supra)
that the appeal taken by an employee found guilty of misconduct, from
the decision of the Commissioner of Civil Service to the Civil Service
Board of Appeals, precludes “the execution of the decision of the
Commissioner of Civil Service”. This statement, however, must not be
taken to mean that the decision of the Commissioner can not be executed
pending appeal, or that the appeal interposed by the employee
necessarily stays its execution, for precisely to clarify the meaning
and scope of said statement, we added: “in other words, the decision
did not become final and executory.” The Tan case, therefore, is not a
decisive authority for the proposition that the decision of the
Commissioner of Civil Service finding a government employee guilty of
misconduct cannot be executed or enforced during the pendency of the
appeal interposed by the employee to the Civil Service Board of
Appeals. On the other hand, well known is the rule that in civil
actions involving purely private rights, a decision may be ordered
executed pending appeal, for special reasons. There would seem to be no
valid reason not to follow this rule in actions and proceedings
involving public interest.

While the issue is obviously not entirely free from doubt because of
what has been stated heretofore, we are however, of the opinion that,
although the decision of the Commissioner of Civil Service adverse to
the government employee under investigation is appealable to the Civil
Service Board of Appeals, the Commissioner has discretion to enforce it
and make it effective pending appeal, to protect public interest.
However, the removal or the continued suspension of the employee
affected through the execution of the appealed decision shall be
considered as unjustified should said decision be reversed by the Civil
Service Board of Appeals and, in such case, as provided for in Section
35 of the Civil Service Act of 1959, the employee “shall be restored to
his position with full pay for the period of suspension”.

In the present case it is clear that the Commissioner of Civil
Service deemed it proper, for the protection of public interest, to
remove appellee from office immediately after the rendition of the
decision finding her guilty. Considering the nature of appellee’s
position, we cannot find our way clear to holding that, in doing so,
the Commissioner of Civil Service acted unlawfully or with grave abuse
of discretion. Obvious it should be to everyone that appellee’s
continuation in the service after having been found guilty of gross
negligence in the performance of her official duties would have
entailed grave risks for the state. On the other hand, should her
appeal prosper, she would be entitled to reinstatement with full pay
for the period during which she was removed or suspended from office.

It results from the foregoing that appellee does not have a clear
legal right to be reinstated during the pendency of her appeal from the
decision of the Commissioner of Civil Service to the Civil Service
Board of Appeals, nor do appellants have the imperative duty to
reinstate her. The writ of mandamus, therefore, should have been denied.

Wherefore, the decision appealed from is reversed, and the petition
for mandamus filed by appellee against appellant is dismissed, with
costs.

Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Regala and Makalintal, JJ., concur.