ROMAN D. ABELLERA, PLAINTIFF-APPELLEE & APPELLANT VS. THE CITY OF BAGUIO, ET AL. DEFENDANTS-APPELLANTS & APPELLEE.

Direct appeal on points of law from a decision of the Court of First
Instance of Baguio, in its Case No. 1346.

For having paid, out of city funds, various treasury warrants
and/or checks which turned out to have been forged, causing loss to the city in
the total amount of P8,750.48, Roman
D. Abellera, cashier in the office of the City Treasurer of Baguio, was charged administratively on
January 18, 1960 for “Dishonesty and Gross Negligence in the Performance
of Official Duties” (Case No. R-22111). 
After the lapse of the period of preventive suspension, he was automatically reinstated to the
service on May 24, 1960.

On June 6, 1961, the
Commissioner of Civil Service found him guilty as charged and considered
said respondent “resigned effective the date fol­lowing his last day of duty with prejudice
to reinstatement in positions In­volving money and/or property responsibility”.  In view of the foregoing decision, Abellera was dismissed on July 10, 1961, and
the position of cashier was filled in
by one Francisco Rillera.  In the
meantime, upon denial by the Commissioner of his motion for new trial, Abellera
appealed to the Civil Service Board
of Appeals.

On January 25, 1963, the Civil Service Board of Appeals modified
the ruling of the Commissioner of Civil Service by reducing the penalty imposed
on the employee to two months suspension, without pay.  Other­wise, the decision of the Commissioner
was affirmed in all other respects. 
After some delay attending
the exchange of communication between the City Treasurer of Baguio and the
Civil Service Commissioner, Abellera was finally allowed to report for work
on November 11, 1963.

On January 17, 1963, however, alleging that he has not been
reinstated to his former position of cashier, but was only required to do work other than that of a cashier, and
that he has not been paid any salary, including the back salaries due him from
July 10, 1961, Abellera filed an action for mandamus in the Court of First Instance of Baguio against
the City of Baguio, the City Council, the City Auditor, and the City Treasurer,
the latter being sued both in his official as well as his personal capacities;
seeking for his re­instatement to the position
of city cashier with back salaries from July 10, 1961; for moral damages in the sum of P5,000.00;
exemplary damages for P5,000.00; attorneys’
fees in the sum of P1,500.00 and 20% of the recover­able salaries, plus costs of the suit.

In their answer, respondents
contended that petitioner was not
re­instated as cashier due to the cancellation of his bond; that said
cancellation of bond was recommended
by the City Treasurer following the ruling in the administrative case, finding petitioner negligent in his duties.  It
was also alleged that petitioner
was offered the position of Special
Deputy^[1] with compensation at P3, 960.00 per
annum.  Respondent City Treasurer further
claimed that in refusing to reinstate petitioner to the position of cashier, he
had in mind only the best interest of the government.  The par­ties thereafter submitted the case for judgment on the pleadings.

In its decision of June 8, 1964, the lower court declared that
the action of the City Treasurer in not giving petitioner the work of a cashier
was justified by the decision of
the Civil Service Board of Appeals, reduc­ing merely the penalty by providing a
2 months suspension, but otherwise affirming the decision of the Commissioner
of Civil Service in all other respects. 
But the respondents were ordered to pay Abellera’s salary from the date of his suspension on July 10,
1961 until November 10, 1963, deduct­ing therefrom the 2 months pay corresponding
to the penalty imposed by the Civil Service Board of Appeals.  Respondents were also directed to reinstate
him to a position in the service of the city government with sal­ary at P330.00
a month, but which will not involve the custody of funds and/or property. 
The court did not award any damages, because no bad faith can be
attributed to anyone, including the City Treasurer, and also because municipal
corporations cannot be held civilly liable
for the mis­feasance or malfeasance of any of its officers or
employees.  Both parties appealed to this
Court.

Appellants City of Baguio
and its officials assail the correctness of the award of back salaries to
petitioner from July 10, 1961 to November 10, 1963.  It is
claimed that since petitioner was found
guilty of negli­gence by the Civil Service
Board of Appeals although the penalty originally imposed by the Commissioner of
Civil Service was reduced to only 2 months suspension, his (Abellera’s)
suspension from the service cannot be cons­idered unjustified to entitle him to
payment of the salaries during the pe­riod in question.  It is also contended that such payment of
back salaries is discretionary
in the proper department head, in this case, the Secretary of Finance. 
On the other hand, petitioner as appellant claims that the lower court
erred in not ordering the respondents, particularly the City Treasurer, to
pay him damages and in not ordering his
reinstatement to the position of cashier in the office of the City Treasurer of
Baguio.

The rule on payment of back salaries during the period of suspen­sion
of a member of the civil service who is subsequently ordered reinstated, is
already settled in this jurisdiction. 
Such payment of salaries corresponding to the period when an employee is
not allowed to work may be decreed not only if he is found innocent of the
charges which caused his suspension (Sec. 35, Rep. Act 2260), but also when the
suspension is unjustified.^[2]

In the present case, upon receipt of the decision of the Civil
Service Commissioner finding petitioner-appellant guilty, but even before the
pe­riod to appeal had expired, respondents dismissed the latter from the ser­vice and
another one was appointed to replace him. 
The separation of petitioner before the decision of the Civil Service
Commissioner had be­come final was evidently premature.  Respondents should have realized that the
employee still had the right to appeal the Commissioner’s deci­sion to the
Civil Service Board of Appeals within a specified period, and the possibility of that decision being reversed
or modified.  As it did happen, on
such appeal by the petitioner, the
penalty imposed by the Commissioner was reduced by the reviewing Board to only 2 months suspension.  And
yet, by respondents’ action, petitioner was deprived of work for more
than 2 years.  Clearly, Abellera’s second
suspension from office, from July 10, 1961 to November 10, 1963, was unjustified^[3] and the payment of the salaries
corresponding to said period is, consequently, proper.4 Otherwise,
Abellerd, in effect, suffer a suspension longer than that meted him by
the Civil Service Board of Appeals.

It is also contended by the respondents-appellants that under its
charter, the City of Baguio is exempted from liability for damages or injuries
caused by the failure of any city officials to enforce any provision of law or
ordinance, or by the negligence of said officials in enforcing or attempting to enforce the same (Sec. 2547, Rev.
Adm. Code).  But, this is not an instance
of “failure” of the city officials to take action or
“negligence” in the enforcement of the law.  The unjustified action of the respondents
here is not that it was the product of negligence, than of haste or overzeal. The exempting provision invoked is
not, therefore, applicable.

Respondents-appellants,
likewise, cited a 1959
ruling of the Auditor General to support their contention that the payment of
back salaries of suspended employees depends upon the discretion of the proper
department head.  It may be pointed out
that the aforecited rul­ing, part of
which was
quoted in appellants’ brief (pp.
13-14), was referring to the authority of the Civil Service Commissioner to suspend employees pursuant to
Section 695 of the Revised Administrative Code. 
The ruling, therefore, must have
been based on Section 260 of the
same Code which provides that when the chief of a bureau or office
suspends a subordinate official or
employee, the person suspended shall not re­ceive pay during the
suspension, unless so ordered by the department head.  These provisions
of the Revised Administrative Code, however, are deemed to have been superseded by Republic Act
2260 (Revised Civil Service Act), which contained provisions on Discipline of government officials and employees (Chapter
VII), and on preventive suspension (Sec. 35). 
And, under this later legislation, the authorization of the department
head is no longer necessary before back salaries may be paid.

Coming to the petitioner-appellant’ s assignment of error, we
have to sustain the ruling of the lower court. 
Considering that there is no
question that by petitioner’s act, which was found even by the Civil Service Board of
Appeals to be negligent, the city lost the amount of P8,750.48, his dismissal
by the respondent city officials cannot entirely be attributed to malice or bad
faith.  In the absence of positive
showing to the contrary, we have to accept respondents’ explanation that the
action complained of was prompted
by their belief that it was being done for the best interest of the city
government.

In view of the
foregoing considerations, the decision appealed from is hereby affirmed, with
costs against respondents-appellants.

SO ORDERED.

 Concepcion, C.J., Dizon,
Regala, Makalintal, Bengzon, Zaldivar, Sanchez, and
Castro, JJ., concur.

^[1]
Upon the request of the City Treasurer, the City Council created on December 2,
1963, the position of Special Deputy in the office of the City Treasurer, with compensation at P3,960.00 per annum,
purposely to accommodate Abellera.

^[2]
Reyes vs. Hernandez, 71 Phil. 397; Villamor, et al. vs. Lacson, et al.,
G. R. No. L-15945, Nov. 28, 1964.

^[3]
Sison vs. Pajo, G. R. No. L-18443, May 31, 1965; Bautista vs.
Peralta, et al., G. R. No. L-21967, Sept. 29, 1966.