JOEL ALLIAN, PETITIONER, VS. THE CHAIRMAN & COMMISSIONERS, CIVIL SERVICE COMMISSION, RESPONDENTS.

The petitioner, Joel Allian, seeks a
review of Resolution No. 90-009 dated January 5, 1990, of the Civil Service
Commission denying his claim for back salaries and other benefits due him for
the period of his illegal dismissal on February 2., 1988 up to October 30,
1989, when he was reinstated by the Commission to his position as Personnel
Specialist II.

On February 12, 1988, Allian
received a written notification from CSC Chairman Celerina
Gotladera informing him that in the reorganization of
the Commission pursuant to Section 3 of Executive Order No. 181 dated June 1,
1987, he was separated from the service effective February 1, 1988. He learned
later that he was dismissed for having incurred unauthorized leaves of absence
which, according to him, had in fact been authorized or approved by his
superiors. He filed a petition for reconsideration with the Reorganization
Appeals Board (RAB).

On August 4, 1988, the RAB-promulgated Resolution No. 88-29
finding that his separation from the service was “not in order,”
hence, “he should be reappointed to his former position as Personnel
Specialist, without prejudice to the filing of appropriate administrative
disciplinary action against him as the evidence may warrant” (Annex F).

This resolution became final and executory
after fifteen (15) days.

On September 2, 1988, Allian requested
that he be reappointed to his former position (Annex G), but the Commission
replied on September 12, 1988 that he would have to undergo “further
screening and evaluation” (Annex H). He protested that he was “neither a
next-in-rank nor an applicant” for the position hence, he need not be
screened and evaluated. He reiterated his request that he be reappointed. He
further prayed that the Commission grant him other reliefs
and benefits due him under the law (Annex I).

On August 25, 1989,
he wrote a follow-up letter requesting that the Commission order his
“immediate reappointment x x x
with payment of back salaries and other benefits and the recognition of
seniority and other rights of a permanent career service employee” (Annex
J).

On October 24, 1989, the Commission relented and issued
Resolution No. 89-813 appointing him to his former position as Personnel
Specialist II (Annex K).

As the resolution did not grant him back salaries, he again wrote
the Commission on November “3. 1989 reminding it that under Section 20 of
the Rules on Government Reorganization promulgated by the Commission to
implement Republic Act No. 6656, officers and employees found to have been
separated from the service in violation of RA No. 6656 “shall be ordered
reinstated or reappointed as the case may be without loss of seniority and
shall be entitled to full pay for the period of separation corresponding to
the position to which they should have been appointed based “on the
evaluation and assessment as provided for in these Rules.” Since he
incurred debts to be able to support his family during the period of his
illegal termination from the service, he asked for his back salaries so he
could pay his debts (Annex L).

On January 5, 1990.
the Commission issued Resolution No. 90-009 denying
his claim for back salaries (Annex M).

Allian promptly filed a petition for
certiorari and mandamus in this Court. Upon being ordered to comment on the
petition, the Solicitor General manifested that after a thorough review of the
records of the case, he was “unable to sustain the position taken by the
public respondents.” He asked that the latter be given time “to file
their own Comment” (p. 52, Rollo) which they did
on May 31, 1990 (p. 56, Rollo).

The lone issue raised in the petition is whether Allian is entitled to full pay for the period of his
illegal separation.

Section 9 of RA 6656 provides:

“Section 9. All officers and
employees who are found by the Civil Service Commission to have been separated
in violation of the provisions of this Act, shall be ordered reinstated or
reappointed as the case may be without loss of seniority and shall be
entitled to full pay for the period of separation x x
x.” (Emphasis supplied.)

In their comment on the petition, the public respondents
justified their action on the grounds that (1) Allian
was guilty of’ incurring unauthorized leaves of absence; (2) that his
reappointment was merely an act of generosity and compassion by the Commission;
(3) that he was “reemployed,” not “reinstated,” after being
separated from the service through a valid reorganization of the Commission;
(4) that he did not render service during his period of unemployment; and (5)
that “there is no declaration that he was illegally terminated from the
service” (p. 63, Rollo).

After deliberating on the petition and the respondents
comment which we have treated as their answer, the Court resolved to grant the
petition.

The Commission’s finding that Allian
had violated reasonable rules and regulations by going AWOL (absence without
leave) is invalid because Allian was not formally
charged with that offense nor given a chance to defend himself. On the
contrary, the RAB found that “records are bereft of any proof of his
having any derogatory record which could be attributed to his termination”
(p. 6, Rollo). 
The RAB pointed out that even if an employee had been absent without
approved vacation leave of absence for a period of one (1) month, he may not be
dismissed outright because Memorandum Circular No. 2, s. 1985 of the
Commission, particularly Item No. 4 of the 5th paragraph thereof, requires that
–

4.       The agency should
notify in writing the employee, who is absent (on vacation) 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.

Since no records show that Allian was notified to report for work as required by the
above-cited circular, nor is there any showing that he failed to file an
application for any leave of absence he made during the period in
question” (p. 7, Rollo), he may not be dropped
from the rolls.  To find him guilty of
absence without leave without first hearing his side and giving him a chance to
present evidence in his defense, would be tantamount to convicting him of a
violation of law without due process.

The RAB found that Allian’s dismissal
was “not in order,” in effect, unlawful.  Consequently, he was entitled to
reinstatement as a matter of right, not out of charity or compassion.

He may not be faulted for failing to render service during the
period of his illegal dismissal.  The
Commission illegally deprived him of his work. 
Since his dismissal was effected in violation of the law, he is entitled
to the payment of his back salaries as provided in Section 9 of RA 6656. So did
the Commission and this Court hold in the case of the ^customs employees who
were improperly reorganized out of the service (Dario vs. Mison,
et al., G.R. No. 81954 decided together with G.R. Nos. 81967, 82023, 83737,
85310, 85335 and 86241 on August 8, 1989).

WHEREFORE; the
petition for certiorari is granted.  The
public respondents are ordered to pay the salaries and other benefits legally
due the petitioner, Joel Allian, from February 2. 1988 to October 30, 1989, a period of
twenty-one (21) months. No costs.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Medialdea, and Regalado, JJ.,
concur.