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

Abellera versus City of Baguio

The Case

This is a direct appeal on pure questions of law from a decision of the Court of First Instance of Baguio. Roman Abellera, a cashier in the office of the City Treasurer of Baguio, sued the City of Baguio, its City Council, its City Auditor, and its City Treasurer for mandamus, seeking reinstatement to his position as city cashier with back salaries, damages, and attorney's fees, after he was separated from the service on a civil service finding that was later reduced on appeal. The case matters because it fixes the rule on when a government employee who is suspended and later reinstated may collect back salaries, and because it marks the point at which the Revised Civil Service Act displaced the older administrative code rule that left back pay to the discretion of the department head.

Procedural History

Abellera was charged administratively before the Commissioner of Civil Service, who found him guilty and considered him resigned with prejudice to reinstatement in positions involving money or property responsibility. He was dismissed, and he appealed to the Civil Service Board of Appeals, which modified the ruling by reducing the penalty to two months suspension without pay and affirmed the rest. He then filed an action for mandamus in the Court of First Instance of Baguio. That court, in its decision of June 8, 1964, held that the City Treasurer was justified in not giving him the work of cashier, but ordered the respondents to pay his salary from July 10, 1961 until November 10, 1963, deducting the two months corresponding to the penalty, and directed his reinstatement to a position not involving custody of funds or property. It awarded no damages. Both parties appealed directly to the Supreme Court on points of law.

Facts

Abellera, as cashier in the office of the City Treasurer of Baguio, paid out of city funds various treasury warrants and checks that turned out to have been forged, causing the city a loss of 8,750.48 pesos. On January 18, 1960 he was charged administratively with dishonesty and gross negligence in the performance of official duties. After the period of preventive suspension lapsed, he was automatically reinstated on May 24, 1960.

On June 6, 1961 the Commissioner of Civil Service found him guilty as charged and considered him resigned effective the day following his last day of duty, with prejudice to reinstatement in positions involving money or property responsibility. On the strength of that decision he was dismissed on July 10, 1961, and the position of cashier was filled by another. Meanwhile, after the Commissioner denied his motion for new trial, he appealed to the Civil Service Board of Appeals.

On January 25, 1963 the Civil Service Board of Appeals modified the Commissioner's ruling by reducing the penalty to two months suspension without pay, and affirmed the decision in all other respects. After some delay in the exchange of communications between the City Treasurer and the Civil Service Commissioner, Abellera was finally allowed to report for work on November 11, 1963. He alleged that he had not been reinstated as cashier but was only required to do other work, and that he had been paid no salary, including back salaries from July 10, 1961. The respondents answered that he was not reinstated as cashier because his bond had been cancelled, and that he had been offered the position of Special Deputy at 3,960 pesos per annum. The parties submitted the case for judgment on the pleadings.

Issues

• Whether or not Abellera is entitled to back salaries for the period from July 10, 1961 to November 10, 1963, despite having been found negligent and penalized with two months suspension.
• Whether or not the payment of back salaries is discretionary with the proper department head.
• Whether or not the City of Baguio is exempt from liability under the exempting provision of its charter.
• Whether or not Abellera is entitled to damages and to reinstatement to the position of cashier.

Applicable Provisions

Section 35 of Republic Act 2260, the Revised Civil Service Act, on preventive suspension, provides:

Sec. 35. Preventive suspension. — When a charge is filed against a subordinate officer or employee, the Chief of Office may suspend the subordinate officer or employee immediately, pending an investigation of the charges, but in such case the suspension shall not continue beyond thirty days, and the officer or employee shall be automatically reinstated in his office and paid the salary or compensation to which he may be entitled from the date of his suspension, unless the investigation is finished within the said period of thirty days and the Chief of Office fails to decide the case within said period, in which case the suspension shall not exceed ninety days, and the officer or employee shall be automatically reinstated in his office and paid the salary or compensation to which he may be entitled from the date of his suspension, unless the delay in the decision of the case is due to the fault, negligence or petition of the officer or employee, in which case the period of delay shall not be counted in computing the period of suspension herein provided.

This is the statutory basis for the Court's statement that back salaries may be decreed when the employee is found innocent of the charges that caused his suspension.

Section 260 of the Revised Administrative Code, which the respondents invoked through the 1959 ruling of the Auditor General, provides:

Sec. 260. Suspension without pay. — When the chief of a bureau or office suspends a subordinate officer or employee, the person suspended shall not receive pay during the suspension, unless so ordered by the department head.

The Court held that this provision, and the discretion it lodged in the department head, was superseded by Republic Act 2260.

Section 2547 of the Revised Administrative Code, the exempting provision of the Baguio charter, provides:

Sec. 2547. The city shall not be liable for damages or injuries caused by the failure of any city official to enforce any provision of law or ordinance, or by the negligence of said officials in enforcing or attempting to enforce the same.

The Court held this exemption inapplicable because the respondents' action was not a failure to act or negligence in enforcement.

Ruling

On the first issue, the Court held that the payment of salaries for 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, but also when the suspension is unjustified. Here, the respondents dismissed Abellera and appointed a replacement even before the period to appeal from the Commissioner's decision had expired. That separation was premature, because the employee still had the right to appeal and the possibility that the decision would be reversed or modified. As it happened, the Board reduced the penalty to two months suspension, and yet the respondents' action deprived him of work for more than two years. The second suspension was therefore unjustified, and the payment of the corresponding salaries was proper. Otherwise he would in effect suffer a suspension longer than that meted him by the Board.

On the second issue, the Court held that the 1959 ruling of the Auditor General rested on Section 260 of the Revised Administrative Code, which allowed pay during suspension only when so ordered by the department head. Those provisions are deemed superseded by Republic Act 2260, and under this later legislation the authorization of the department head is no longer necessary before back salaries may be paid.

On the third issue, the Court held that the exemption in the Baguio charter does not apply, because this is not an instance of failure of the city officials to take action or of negligence in the enforcement of the law. The unjustified action of the respondents was the product of haste or overzeal rather than negligence.

On the fourth issue, the Court sustained the lower court. Since Abellera's act, found even by the Board to be negligent, caused the city to lose 8,750.48 pesos, his dismissal by the city officials cannot entirely be attributed to malice or bad faith. In the absence of a positive showing to the contrary, the Court accepted the explanation that the action was prompted by the belief that it was for the best interest of the city government. Hence no damages, and no reinstatement to the position of cashier.

Doctrine

Back salaries corresponding to the period when a civil service employee is not allowed to work may be decreed not only when he is found innocent of the charges that caused his suspension, but also when the suspension is unjustified. A suspension is unjustified when it extends beyond the penalty ultimately imposed, as where the employee is dismissed before the administrative decision becomes final and is later meted only a shorter suspension on appeal.

Under Republic Act 2260, the authorization of the department head is no longer necessary before back salaries may be paid; the older rule of Section 260 of the Revised Administrative Code, leaving pay during suspension to the discretion of the department head, is deemed superseded.

The exemption of a city from liability for the failure or negligence of its officials in enforcing the law does not cover an unjustified personnel action that is the product of haste or overzeal rather than negligence.

Damages are not awarded against public officers for a dismissal carried out in the belief that it served the best interest of the government, absent a positive showing of malice or bad faith.

Disposition

The decision appealed from was affirmed, with costs against the respondents-appellants, so Abellera recovered his back salaries for the period less the two months penalty and was reinstated to a position not involving custody of funds or property, but received no damages and was not restored to the post of cashier.

Remember This

Memorize the rule: back salaries may be decreed not only when the employee is found innocent, but also when the suspension is unjustified, and under Republic Act 2260 the department head's authorization is no longer required. Examiners use this case on the consequences of a premature dismissal before an administrative decision becomes final, and on the supersession of the old administrative code rule by the Revised Civil Service Act.