ADMINISTRATIVE ORDER NO. 155

ADMINISTRATIVE ORDER NO. 155 - SUSPENDING AMBASSADOR ROMEO O. FERNANDEZ FOR ONE (1) YEAR AND SUSTAINING THE ORDER OF THE SECRETARY OF FOREIGN AFFAIRS RECALLING HIM TO THE HOME

OFFICE FROM HIS POST AS AMBASSADOR-DESIGNATE TO PERU 

This refers to the administrative charges, dated July 15, 1988, filed by the Secretary of Foreign Affairs through the Acting Director General of the Office of Personnel and Administrative Services, against Ambassador Romeo O. Fernandez for "insubordination, dishonesty, and grave misconduct and conduct prejudicial to the best interest of the service."

Antecedent facts show that, on November 3, 1987, respondent was extended an appointment by the President of the Philippines, as Ambassador Extraordinary and Plenipotentiary to the Republic of Peru upon the recall of Ambassador Ernesto Garrido on September 1, 1987. Pursuant thereto, the Secretary of Foreign Affairs (SFA) issued Assignment Order No. 17-88 and Travel Order No. 88-26, both dated February 15, 1988.

Before respondent could assume his new assignment, the SFA instructed respondent not to proceed to Lima, Peru, on account of an alleged adverse report purportedly submitted by the National Intelligence and Coordinating Agency (NICA) identifying respondent as a probable security risk, in view of his reported intimate association with a Chilean-born Russian national named Tatiana V. Iachina. It appears that the verbal instructions of the SFA are conveyed earlier to the respondent by Undersecretary of Foreign Affairs Manuel T. Yan.

The above instructions notwithstanding, respondent departed for Peru on April 16, 1988. Thereafter, he assumed office as ambassador to Peru and made arrangements with the receiving state (Peru) for the presentation of his credentials.

On April 22, 1988, the Department of Foreign Affairs (DFA), in cable No. L1-02-88-S, directed respondent to return to Manila immediately. Department cable No. L1-03-88-S reiterated the recall order; additionally, respondent was directed not to present his credentials or otherwise to cancel the arrangements for that purpose, if already made.

Not long thereafter, or on April 30, 1988, respondent, by way of reply, requested reconsideration of his recall order and cautioned the DFA that his recall on the eve of presentation of his credentials might be viewed as an unfriendly act. There were other cables from respondent. Nonetheless, respondent's requests for reconsideration and deferment of his recall order were all rejected by the DFA. He then returned to Manila on June 26, 1988.

Respondent was likewise charged with dishonesty thru misrepresentation in that Maria Romina L. Fernandez, who is listed as respondent's 3-year old daughter in Travel Order No. 88-26, was averred to be his daughter by Liza L. Fernandez in the child's passport application when in Birth Certificate D13 I-M10 No. 010124 legalized at the Consular Department of the Ministry of Foreign Affairs of the U.S.S.R. on June 2, 1986, Maria Romina Fernandez, the child, is declared to be the daughter of Romeo Fernandez and Tatiana Vladimirovna Yashina and in the Application For Immigrant Status (September 11, 1987) of one Tatiana V. Iashina a.k.a. Gina Alvarez, respondent declared Maria Romina Fernandez to be the child of Tatiana V. Iashina. In Note Verbale No. 88-1210, dated March 14, 1988, addressed to the U.S. Embassy and in Note Verbale No. 88-1268 dated March 17, 1988, addressed to the Canadian Embassy, applying for entry visas for Tatiana Iachina, she was described as a landed immigrant when the truth of the matter is that Tatiana entered the Philippines as a temporary visitor (tourist) with a 9(a) visa on November 29, 1986, and was granted a change in status to non-preference quota immigrant under Section 13 of the Philippine Immigration Act only on November 22, 1987. There is a third specification in that "Ambassador Fernandez figured prominently as the spokesman, guarantor and overall protector of Miss Tatiana Iachina from her exit from the USSR, her admission in the Philippines under a tourist visa, her change of status from tourist to quota immigrant, her application for transit visa from the U.S. Embassy and finally, her departure for Lima, Peru."

The change of grave misconduct and conduct prejudicial to the interest of the service is based on respondent's public criticisms addressed to the media, his non-reporting to the Department, as Charge d' Affaires of the Philippine Embassy in Moscow, of activities of employees under him who were close associates of an entrapment group, and the use of threats and intemperate/irresponsible language in official and other communications.

Acting on the administrative complaint, the Board of Foreign Service Administration (BFSA) referred the case for investigation and report to an Investigating Committee. Thereafter, or on February 27, 1989, the Board rendered the following findings, as follows:

"The Investigating Committee is fully aware of the previous meritorious service of the respondent who rose from the ranks in the career service until he reached the position of Chief of Mission Class I. He was favorably recommended by Secretary Manglapus to be assigned as Ambassador to Peru and the President signed his letters of credence.

"He openly defied an order of the Secretary not to proceed to Lima, Peru, in view of an adverse information against him and his illicit relations with a Russian citizen. He also refused to return to Manila despite the repeated orders from the Department. It is admitted by the Respondent that Tatiana Iachina was born in Chile. When she became orphaned, she was brought to Russia where she was raised and educated by

The same Board went further to recommend:

"The offenses of insubordination, dishonesty, grave misconduct and conduct prejudicial to the best interest of the service are all grave offenses which call for the imposition of a maximum grave penalty. However, the Board considered his length of service and that it is his first offense as mitigating circumstances. Wherefore, the Board recommends that the proper imposable penalty in this case against

From this resolution, respondent appealed to this Office manifesting his non-conformity to the BFSA resolution of February 27, 1989. The pertinent portion of his letter-memorandum, dated September 22, 1989,

"It may be noted that the Resolution signed by Manuel T. Yaw (sic) as Acting Chairman does not indicate that this was the handiwork of the Board of Foreign Service Administration. Please note that no signatures of the members present and concurring appear in the documents. It may be noted further that on page 11 of the Resolution the findings is attributed to an Investigating Committee and therefore is not the deliberation of the Board en banc. This committee was chaired by the Ex-Justice Jorge Coquia, Assistant Secretary for Legal Affairs, with Ambassador Rosalinda Tirona, Ambassador Ernesto Garrido, Assistant Secretary for Legislative Affairs Vicente de Vera and Deputy Civil Service Commissioner Mario Yangco as members. . . ." [Emphasis by itself]

At the outset, it must be stressed that the Resolution of the BFSA is only recommendatory in nature. Regardless of any error committed by the BFSA during the investigation, it does not preclude the President from exercising her administrative disciplinary authority over respondent who is a presidential appointee. On the other hand, the DFA regulations on administrative disciplinary proceedings against DFA personnel, particularly Sections 441 to 450 of the Foreign Service Code of 1983 and Ministry Order No. 12-85, dated June 5, 1985, being departmental regulations are, by their very nature, subject to the superior administrative disciplinary authority of the President over presidential appointees so much so that, whatever defect, it there be any, in the assailed BFSA resolution, it does not diminish nor supplant the disciplinary authority of the President over presidential appointees, as in the instant case.

This brings to the fore the core issue of whether or not respondent is administratively liable for "insubordination, dishonesty, and grave misconduct and conduct prejudicial to the best interest of the service."

After going over the records of the case, I concur with the BFSA finding respondent guilty of insubordination, dishonesty and conduct prejudicial to the best interest of the service.

On the charge of insubordination, the evidence incontrovertibly shows that respondent failed to return to the Philippines, despite the recall order of April 22, 1988, prompting the SFA to dispatch several cables reiterating his recall order. This fact alone constitutes insubordination, as respondent's conduct evinced a willful disregard of an express direction and refusal to obey reasonable orders of his superior. Unless countermanded by the President, the order of recall made by the SFA stands. In the instant case, I find the recall order of April 22, 1988, valid and effective. Respondent's contention that the recall order has no basis is not well taken. While it may be true that what prompted the SFA to issue the recall was the alleged NICA report tagging respondent as a possible security risk, which allegation is bereft of factual basis, nevertheless, respondent's defiance of the series of recall orders of the SFA constitutes insubordination.

With regard to the charge of dishonesty, I find respondent guilty thereof. In Administrative Order No. 122, we have had occasion to define dishonesty in this wise:

"Respondent herself accepts the definition of 'dishonesty' in former Civil Service Commissioner Abelardo Subido's Disciplinary Rules and Procedures in the Philippines Civil Service (1976 Ed., pp. 41-42) 'as absence of integrity; a disposition to betray, cheat, deceive or defraud; bad faith.' (Citing Arca vs. Lepanto Consolidated Mining Company, CA G.R. 17679-R, Nov. 24, 1956, citing 27 C.J.S. 47.) For indeed, 'dishonesty' means 'a disposition to lie, cheat or defraud; untrustworthiness; lack of integrity' (State ex. rel. Neal v. Civil Service Commission, 72 N. E. ed 769, 71, 147 Ohio St. 430) and 'signifies an intentional violation of the truth' (Godfrey vs. Godfrey v. Godfrey, 106 N. W. 814, 819, 127 Wis. 47, 7 Ano. Cas. 176); and is synonymous to 'fraud' (Ex parte Drayton, 153 F. 986, 991), so that 'whatever is dishonest is fraudulent in foro concientiae' (Idem.). Its meaning —

'extends beyond acts which would be criminal and is not restricted to such conduct as imports a criminal offense; and it has been specifically defined as an absence of integrity, a disposition to betray, cheat, deceive, defraud, or deceive; bad faith, course of conduct generally characterized as lacking in principle, a disposition to defraud, deceive or betray; faithlessness, want of integrity in principle, or of fairness and straightforwardness; fraud. It may consist in an intentional violation of the truth, or any violation of the truth, or any deviation from probity.' (27 C.J.S. Dishonesty, p. 312)'"

The facts on the record are clear. Respondent, in the passport application of his daughter, Maria Romina Fernandez, made it appear that the child's mother was Liza L. Fernandez, a statement contradicted both by Birth Certificate D13 I-M 10 No. 010124 and the Application for Immigrant Visa (September 11, 1987). Respondent, being the personal representative of our country, ought to be more discreet in the conduct of his public as well as private affairs.

Finally, respondent's public criticisms against the DFA aired through the media show outbursts of passion not befitting an ambassador. His actuations are covered by Administrative Order No. 46, dated September 15, 1937, "Prescribing Rules Regarding The Practice Of Officials And Employees Of The Government To Discuss Or Clarify All Differences Of Opinion On Public Matters In Press", which is hereby quoted in full for the information and guidance of all concerned:

"In view of the frequency in which controversies touching upon particular phases of governmental activity have been carried on through the public press by contending officials of the Government, or between an official of the Government on the one hand and a private individual on the other; and since this practice is unseemly, distasteful, and may even, at times be definitely harmful to the service; and because further, the publicizing by two governmental officials of conflicting opinions or real or fancied mutual grievances cannot fail to give the impression that the Government is devoid of order and organization, and that its members are lacking in that sense of restraint and decorum so essential to the effective discharge of public duty;

"NOW, THEREFORE, I, MANUEL L. QUEZON, President of the Philippines, by virtue of the powers in me vested by law, do hereby direct the following rules to be followed:

(1) Controversies between officials or employees of the Government shall be submitted to the respective authorities empowered by law to take cognizance thereof, and the decisions of such authorities shall be faithfully observed by the contending parties.

(2) If and when news or statements contrary to facts are published in the press, or when criticisms are made, founded on false or incorrect information, the Head of the Department or his duly authorized representative may issue a statement giving the facts as they actually are and as supported by the official files, but in no case, except with the express authority from the Office of the President of the Philippines, shall such statement contain argumentative matter or controversial discussion.

"This Order shall not preclude any official or employee of the Government from furnishing specific information on, or from clarifying doubtful points concerning, any appropriate subject pertaining to the functions of the particular official or employee, provided that such statements shall be without reference to previous criticisms of the Government, or in answer to any of critics. Neither shall this Order preclude any department or office of the Government from publishing from time to time, as it is frequently its duty to do, articles in the daily press, in other periodicals or magazines, or in publications of the Government, which articles are intended to inform the people regarding the policies of, and the work being done by the Government on matters that may be of interest to the people in the promotion of their well-being, such as topics regarding the efforts of the Government toward the improvement of agriculture, development of proper commerce and trading practices, and other matters of similar general import.

"Any official or employee of the Government violating any of the above rules directly or indirectly shall be subject to disciplinary action, including removal from office after due investigation and conviction."

Lastly, I agree with the Board of Foreign Service Administration and the Secretary of Foreign Affairs that respondent deserves the penalty of suspension for one (1) year.

WHEREFORE, respondent Ambassador Romeo O. Fernandez is hereby found guilty of insubordination, dishonesty, and grave misconduct and conduct prejudicial to the best interest of the service. Accordingly, he is hereby meted the penalty of suspension from office for one (1) year without pay.

DONE in the City of Manila, this 22nd day of January, in the year of Our Lord, nineteen hundred and ninety.

GARCIA, Delia G.

Re: Insubordination; Appeal

x------------------------------------x

 

 

 

RESOLUTION NO. 030811

  

Delia G. Garcia, Professor VI, Isabela State University (ISU), Echague, Isabela, appeals from the decision dated May 24, 2000, of the Civil Service Commission Regional Office (CSCRO) No. II, Tuguegarao City, finding her guilty of Insubordination for which she was imposed the penalty of fine equivalent to one (1) month of her salary; and the decision dated September 13, 2000, denying her motion for reconsideration.

 

Said May 24, 2000, decision reads, in part, as follows:

 

“Let it be emphasized that the authority to travel, the authority to attend meetings and conferences and the grant to go on vacation leave are subjected (sic) to the discretion of the head of the agency/institution.

  “The disapproval of the travel necessarily means that the employee is not allowed to travel or to leave the workplace. Such is an order for the employee to stay at the workplace.   “To travel on official Business (sic) and to travel on official time have the same effect, as when one goes on leave. That is, one necessarily leaves the workplace. When one’s travel is disapproved then he applies for a forced leave, is it not circumventing the very purpose of not allowing one to travel.   “When Ms. Garcia’s authority to travel was disapproved she opted to file an application for leave. Necessarily, because to go on travel and to go on leave have the same effect of leaving the workplace, such will also be disapproved. Conclusively, Ms. Garcia refused to obey the order for her to stay at the workplace.   “WHEREFORE, MS. DELIA GARCIA is hereby held liable with (sic) the administrative offense of Insubordination. Thus, she is meted the penalty of fine equivalent to one month salary.”

 

  

Garcia anchors her appeal on the following grounds:

  “1. The Decision was (sic) not supported by sufficient evidence to support (sic) a finding

of guilt;   “2. The testimony of the witnesses (sic) for the complainant is tainted with bias;   “3. Errors of law have been committed prejudicial to the interests (sic) of

Respondent-Appellant; and   “4. Failure to appreciate the mitigating circumstances in favor of herein Respondent-

Appellant.”  

At the outset, it must be pointed out that under Section 52 (B) 5 of the Uniform Rules on Administrative Cases in the Civil Service, the offense of Insubordination is punishable by suspension from the service for a period of one (1) month and one (1) day to six (6) months for the first offense and dismissal from the service for the second offense. Obviously then, the CSCRO No. II erred, among other errors, when it imposed upon Garcia the penalty of fine in an amount equivalent to her one (1) month salary after supposedly finding her guilty of Insubordination.

 

It may be relevant to mention that Garcia’s appeal is utterly wanting as it does not raise any plausible and persuasive argument/s in her favor. The discussion and arguments advanced are irrelevant, immaterial and not in any way determinative of the issue whether she is culpable for Insubordination, the offense of which she was found guilty. Be that as it may, the Commission disregarded such an infirmity and instead assiduously studied and evaluated the entire records of the case so that justice be done to whom it is due. This is so because, as a rule, whenever a decision is subjected to an appeal, the entire case is thrown open to review by the appellate body which, in the instant case, is the Commission.

 

The salient facts, as borne out by the records, may be summarized as follows:

 

Sometime in May 1997, Garcia, who was then the President of the Isabela State University—Echague Faculty Association (ISUEFA), received an invitation dated May 10, 1997, from Florie B. Gapido, Secretary of the National Federation of Faculty Association in State Universities and Colleges (NFFASUC) for the former to attend the “General Assembly” of the members of the “SUC Faculty Federation” to be held in Cebu City on June 9-11, 1997. Said invitation reads, in part, as follows:

 

“TO: ALL SUC FACULTY ASSOCIATION PRESIDENTS   “There shall be a General Assembly of all SUC Faculty Federation members on June 9-11, 1997 (re: CHED’s and PASUC President’s Memo dated April 30 and May 5, 1997 respectively) at Cebu Grand Hotel, Cebu City.    

x x x

  “Your utmost cooperation and participation is hereby enjoined.”  

Garcia also received a memorandum dated May 5, 1997, from Frederick SO. Pada, President of the Philippine Association of State Universities and Colleges, the relevant portions of which read, as follows:

 

“1. The 1997 PASUC General Assembly will be held at Cebu Grand Hotel, Cebu City with Cebu State College and the Cebu State College of Science and Technology as host institutions on June 9-11, 1997 with the theme ‘SUC Response to the Challenges of the World Congress on Higher Education.’

  “2. Each SUC is authorized to send five (5) delegates, composed of President, Vice-

President, Presidents of Faculty and Administrative Associations and Director of Research and Development.

  x x x

  “4. Registration fees, transportation expenses of participants and other necessary

expenses shall be charged against the respective funds of SUCs, subject to the usual accounting and auditing rules and regulations.”

 

On account of the aforementioned invitations, Garcia prepared a “Travel Order” to enable her to proceed to Cebu City on official time and to receive travelling expenses from the Isabela State University (ISU). The immediate supervisor of Garcia recommended approval of the said Travel Order to then ISU President Rodolfo C. Nayga but the latter disapproved the same. The disapproval of the Travel Order of Garcia prompted her to file on June 6, 1997, an application for leave (forced leave) for a period of four days—June 7, 8, 9, and 13, 1997. This application for leave was also signed by Garcia’s immediate supervisor but the same was again disapproved by Nayga although the exact date of disapproval is not clearly indicated in the records.

 

In the meantime, or on June 5, 1997, the officers and members of the ISUEFA issued an “Authorization/Resolution” which partly reads, as follows:

 

“In line with the goals and objectives of the ISUE Faculty Association, we do hereby authorize the ISUEFA President, Dr. Delia G. Garcia, to attend the General Assembly of the SUC Faculty Association Presidents to be held at Cebu Grand Hotel, Cebu City on June 9-11, 1997.

 

  

“Herein request of Dr. Delia Garcia for her attendance to said Assembly Meeting (sic) was earlier forwarded to the ISU Management for approval. Unfortunately, her travel was

disapproved . . . Therefore, all expenses incidental to said travel will be shouldered by the ISU Faculty Association, Echague, Isabela. (P8620.00 plus P500.00 for membership or affiliation fee to the National Federation).”

Accordingly, despite the disapproval of her travel order and application for leave of absence (forced leave), Garcia was able to attend the General Assembly of the State Universities and Colleges Faculty Association Presidents held in Cebu City on June 9-11, 1997.

 

On June 19, 1997, Garcia received a memorandum from then ISU President Nayga, directing her to explain within 72 hours from receipt of the same why no administrative “action” shall be instituted against her for having been absent on June 9-11, 1997, without any approved application for leave.

 

On August 5, 1997, the Commission received a complaint of Nayga against Garcia for Grave Misconduct, Gross Neglect of Duty, Gross Insubordination, and Conduct Grossly Prejudicial to the Best Interest of the Service. The complaint, however, was subsequently referred to the CSCRO No. II for investigation and appropriate action.

 

After conducting a fact-finding investigation, the CSCRO No. II issued a Formal Charge dated January 22, 1998, charging Garcia with Insubordination. Said Formal Charge reads, in part, as follows:

 

“The foregoing facts and circumstances indicate that Dr. Garcia defied the disapproval of her travel order and her application for vacation leave. Thus, there exists a prima facie evidence against her for a less grave offense of Insubordination. However, there is no prima facie evidence against her for Gross Neglect of Duty since she designated Professor Pacita L. Perez as the Officer-In-Charge of the Social Science Department to oversee the faculty members under her department.”  

The formal investigation thereafter ensued, and on May 24, 2000, the CSCRO No. II issued a decision finding Garcia guilty of Insubordination and imposed upon her the penalty of fine equivalent to her one month salary. Garcia moved for a reconsideration but the same was denied by the CSCRO No. II in a decision dated September 12, 2000.

 

Hence, this appeal where the crucial issue to be resolved is whether there is legal basis to find Garcia guilty of Insubordination warranting the imposition upon her of the penalty of fine equivalent to her one (1) month salary.

 

  There is no dispute that at the inception of the present case, Garcia was the President of the association of the faculty members of ISU-Echague, Isabela. Said association was registered as the Isabela State University-Echague Faculty Association (ISUEFA) with the primary objective of representing the faculty members in collective negotiations beneficial to its members. As its President, Garcia was expected to attend to the association’s (union’s) activities, such as meetings and the like. Thus, when Garcia attended the General Assembly of SUC Faculty Association Presidents held in Cebu City on June 9-11, 1997, upon the invitation of the National Federation of Faculty Association in State Universities and Colleges (NFFASUC), she was merely exercising her constitutional and statutory right to self-organization. This is notwithstanding the fact that her travel order and application for forced leave were disapproved by then ISU President Nayga.

 

As a general rule, approval of leave applications is addressed to the sound discretion of the head of office who, in the present case, was Nayga. The exercise of such discretion, however, should not be used as an instrument to abridge or suppress a subordinate’s right to self-organization. The protection accorded employees to exercise their right to self-organization is specifically provided for in Section 40, Subtitle A, Title I, Book V of the Administrative Code of 1987, to wit:

 

 

“Sec. 40. Protection of the Right to Organize.—(1) Government employees shall not be discriminated against in respect of their employment by reason of their membership in employees’ organization or participation in the normal activities of their organizations. Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees’ organizations.   “(2) Government authorities shall not interfere in the establishment, functioning or administration of government employees’ organization through acts designed to place such organization under the control of government authority.”    

The right of a government employee to self-organization cannot simply be ignored and disregarded. In the case of Pamantasan ng Lungsod ng Maynila vs. CSC, 241 SCRA 506, the Supreme Court recognized the superiority of the right to self-organization of the faculty members whose appointments were on temporary status over the discretion of the appointing authority to renew or not to renew their respective expired appointments. In said case, the appointing authority of PLM refused to renew the expired temporary appointments of certain faculty members of PLM supposedly for various reasons such as inefficiency and lack of appropriate qualifications. It was, however, subsequently established that the real reason for the non-renewal of their appointments was their being active and vocal members of their union which made the management uneasy and insecure. In ruling in favor of the faculty members, the High Tribunal succinctly held:

 

 

“ . . . The non-renewal of an employment contract with a term, it is true, is ordinarily a valid mode of removal at the end of each period. This rule, however, must yield to the superior constitutional right of employees, permanent or temporary, to self-

organization. While, a temporary employment may be ended with or without cause, it certainly may not, however, be terminated for an illegal cause.”

 

 

Even on the most important aspect of renewal of expired appointments, the superiority of the right to self-organization was upheld by no less than the Highest Court of the land; what more in a situation involving a few days of leave, as what is at issue in the present case?

 

Moreover, the Commission has noted that the disapproval of the travel order and application for forced leave of Garcia was not for the best interest of the service. As stated by then ISU President Nayga himself in his memorandum dated June 13, 1997, classes in all ISU campuses shall start only on June 16, 1997, or several days after the termination of the General Assembly of SUC Presidents in Cebu City. This being so, it is not difficult to perceive that Garcia’s services are not yet of utmost necessity requiring her physical presence at ISU-Echague campus on June 7-9, 1997.

 

Besides, there are ample pieces of evidence in the records to establish that the disapproval of Garcia’s travel order and application for forced leave was not based on the perception that her absence would be prejudicial to the best interest of the service. Rather, Nayga disapproved Garcia’s travel order and application for forced leave as an act of reprisal for the latter’s being instrumental, as President of the ISUEFA, in the filing of several graft cases against the former with the Office of the Ombudsman and the Office of the President (Presidential Commission Against Graft and Corruption). In the latter case, then President Joseph E. Estrada issued Administrative Order No. 93 apparently dated November 29, 1999, dismissing Nayga from the service after finding him guilty of violating Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Said Administrative Order reads, in part, as follows:

 

 

“The antecedents relevant to this case show that in a resolution dated August 12, 1993, the Isabela State University Employees and Faculty Association (ISUEFA) charged Nayga and several other officials/employees of ISU for graft and corruption for entering into anomalous transactions. . .  

x x x        

“After a review of the facts in the light of the evidence presented, this Office is inclined to agree with the recommendation of the PCAGC. As it were, the public bidding was supposed to be held for the protection of the ISU and to secure for itself the best possible advantages by means of an open competition between and/or among bidders. The aim of public bidding is basically to secure the lowest price, to curtail favoritism in the award, to avoid suspicion or anomalies and to foster fairness among the bidders. But, as disclosed, the facts and circumstances surrounding the transactions in question betrayed these

ideals. To that extent, I concur with the PCAGC’s conclusion. If there are meaningful words to express the same, these are aptly said in pertinent portions of its report, thus:

 

‘xxx it is ironic that the subject matter of the complaint is termite extermination and soil poisoning. The dreaded termites are those who prey on public funds and gobble them up. It is this specie (sic) of termites that should be exterminated. As to soil poisoning, it is the University grounds that should be scorched, not with chemicals, but with torch of truth and justice so that the leaders that will emerge therefrom are men and women who can impart to young minds the gift of learning and true meaning of integrity.’  

“WHEREFORE, all the foregoing considered, and as recommended by the Presidential Commission against (sic) Graft and Corruption, respondent Rodolfo C. Nayga is hereby found guilty as charged and is hereby DISMISSED from the service with forfeiture of benefits that may be due him, effective upon receipt of this order.”

 

It must also be stressed that no public funds were spent or wasted as a consequence of the travel of Garcia to Cebu City as her travel expenses were paid by the ISUEFA. But what is despicable in the instant case is the fact that Nayga allowed and approved the travel, on official business, of several faculty and staff members of ISU to Cebu City supposedly to attend the General Assembly held on June 7-9, 1997, and that all their travel expenses were shouldered by ISU funds. Specifically, these faculty and staff members are Mariano Balawag, Fernando Ibarra, Purita Dychitan, Miguel Ramos, Andres Karganilla, Thelma Lanuza, Marjorie Sunga, Estrella Mendoza, Olivia Karganilla, Matea Balauag, Flavia Nayga, Perlita Babaran, and Avelino Manaay. Vouchers and other pieces of evidence presented by Garcia clearly showed that Nayga allowed and approved the travel of these persons despite the fact that they are not among those who are qualified to attend said general assembly.

 

In fine, it is indubitable that then ISU President Nayga gravely abused his discretion when he disapproved the travel order and application for forced leave of Garcia. As such, Garcia cannot be faulted if she proceeded to attend the General Assembly of SUC Faculty Association Presidents in Cebu City despite the disapproval of her travel order and/or application for forced leave. With all of the foregoing disquisition, the Commission finds no factual and legal basis to find Garcia guilty of Insubordination.

 

   

WHEREFORE, the appeal of Delia G. Garcia is hereby GRANTED. Accordingly, the Decisions dated May 24, 2000, and September 13, 2000, of the Civil Service Commission Regional Office No. II are REVERSED and SET ASIDE, and Delia G. Garcia is EXONERATED of the charge of Insubordination. If Garcia was made to pay a fine equivalent to her one (1) month salary, it is ordered that she be restituted said amount.

 

Quezon City,

 

 

                                                                                                   (Original Signed)                                                                                       J. WALDEMAR V. VALMORES                                                                                                      Commissioner

 

                (Original Signed)    KARINA CONSTANTINO-DAVID                    Chairman

                (Original Signed)         JOSE F. ERESTAIN, JR.                 Commissioner

Attested by:

 

 

                                                                                                       (Original Signed)                                                                                              REBECCA A. FERNANDEZ                                                                                                            Director IV Commission Secretariat and Liaison Office

GELLEGANI, Ma. Cynthia P. A.Re: Appeal; Preventive Suspensionx---------------------------------------------------x

 

RESOLUTION NO. 021021

 

            Ma. Cynthia P. A. Gellegani, Human Resource Management Officer (HRMO) IV, Provincial Government of Compostela Valley, Cabidianan, Nabunturan, Compostela Valley, appeals the directive of Governor Jose R. Caballero, placing her under preventive suspension for a period not exceeding ninety (90) days, contained in the Formal Charge dated November 22, 2001, pertinent portions of which read, as follows:

            "Wherefore, premises considered, Ma. Cynthia P.A. Gellegani, Human Resource Management Officer IV of the Provincial Government of Compostela Valley is hereby charged of the following offenses under the Civil Service Law, to wit:

`a. Dishonesty;`b. Falsification;`c. Conduct grossly prejudicial to the best interest of the service; and`d. Gross Neglect of Duty/Insubordination’

            "Considering the nature and gravity of the offense and there are reasons to believe that Ma. Cynthia P.A. Gellegani is guilty of the charges which would warrant her removal from the service, she is placed under preventive suspension for a period not exceeding ninety (90) days from receipt hereof."

            The material averments of Gellegani in her appeal are, as follows:

            "4. That the formal charge contained an order placing the petitioner under preventive suspension for a period not exceeding ninety (90) days from receipt of the said order; x x x

x x x

            "A. That the 'formal charge' dated November 22, 2001 containing the order issued by the respondent/appellee placing the petitioner under preventive suspension grossly violated Sections 12, 13, 14 and 15 of the Uniform rules on Administrative Cases promulgated by the Civil Service Commission on August 31, 1999; The provisions of the said sections categorically outlined that the conduct of a PRELIMINARY INVESTIGATION is a condition precedent before the disciplining authority (in the instant case the respondent/appellee) could issue the 'formal charge';

            "B. That the order of preventive suspension violated Section 85 of RA 7160, otherwise known as the Local government Code of 1991;

            "C. That as can be gleaned from petitioner's counter-affidavit which she executed in answer to the irregularly issued 'formal charge', there is no actual or legal basis to warrant the issuance of an order placing the petitioner under preventive suspension;

            "D. That the 'formal charge' containing the petitioner's preventive suspension constitutes as one of the UNBROKEN SERIES OF HARASSMENTS AND INTIMIDATIONS committed by the respondent/appellee in order to pressure her to resign from her employment as Chief of the Human Resource Management Division holding the position of Human Resource Management Officer IV of the Province of Compostela Valley, Philippines;

x x x

            When requested to comment, Governor Caballero argued, as follows:

            "2. It must be stressed that the conduct of a preliminary investigation as described in Sections 12, 13, 14 and 15 of CSC Resolution 991936 includes the ex-parte examination of records and documents readily available from a government office and necessarily includes a fact-finding investigation. These requirements have been complied with by the undersigned. A fact-finding investigation was in fact made wherein official documents such as petitioner's daily time records showing falsification were gathered and were among those made as basis for the issuance of the formal charge. Before the formal charge was issued, the undersigned in fact directed the herein appellant on November 5, 2001 x x x to explain in writing her submission of a falsified daily time record. Because prima facie evidence was established based on the foregoing official documents and other evidence, the formal charge was issued. xxx.

x x x

            "3. x x x The preventive suspension does not in any way violate Section 85 of Republic Act 7160. It is worth emphasizing that Sec. 85(b) thereof states that if the delay in the proceedings of the case is due to the fault, neglect or request of the respondent, the time of the delay shall not be counted in computing the period of suspension. This provision is reiterated in Section 20 of CSC Resolution 991936. Appellant's preventive suspension started on December 4, 2001, the date she received the formal charge. The formal investigation of the administrative case against her started on January 3, 2002 and is still on-going up to the present. If there is a delay in the conclusion of the hearing, it is solely attributable to her.

            "4. Records bear out that series of postponements were made at her instance - first, due to the death of her counsel, Atty. Florante Garcia, the withdrawal of Atty. Jumamil, her second lawyer and a request for resetting made by her present lawyer, Atty. Abarquez. She was in fact supposedly deemed to have waived her right to cross-examine the prosecution's witnesses due to her non-appearance during the hearing of the case if not for the reconsiderations given to her. The time of the delay caused by her should not have been counted in the computation of the period of suspension but despite this, she was ordered to report back to work in the exigency of the service x x x. Still, she refused to heed said order x x x.

x x x

            "5. Appellant's claim that the issuance of the preventive suspension order is improper is without merit. She was formally charged of dishonesty, falsification, conduct grossly prejudicial to the best interest of the service, gross neglect of duty and insubordination. The charges of dishonesty and neglect in the performance of duty are among the offenses of which a respondent may be preventively suspended as stated in Section 19 of CSC Resolution No. 991936.

x x x"

            Records show that on July 9, 2001, Governor Caballero issued two (2) office orders to Gellegani, specifically Office Order No. 025-2001 which reads:

"In the exigency of the service, you are hereby reassigned to the Office of the Provincial Governor, Purok I, Poblacion, Nabunturan. As such you are to report to the undersigned for further instructions."

            and Office Order No. 025-A-2001 which states:

"In view thereof, you are directed to conduct a 2-month personnel and organizational audit of the Office of the Provincial Health with the end view of determining its service delivery efficiency and effectiveness, manpower needs, present personnel skills inventory and organizational and structural needs. Upon completion of this assigned task, you are to submit to the undersigned a written detailed report to guide management of future decision making.

"In order to pursue this special assignment effectively, you are temporarily relieved of your present assignment and functions as Chief of the Human Resource Management Division in the Office of the Provincial Administrator effective immediately."

            Gellegani received Office Order Nos. 025-2001 and 025-A-2001 on July 10, 2001 and July 26, 2001, respectively. Upon receipt of Office Order No. 025-A-2001, she immediately reported for work at the Provincial Health Office and stayed thereat until she completed her assigned task and submitted the personnel audit report to the Office of the Governor on October 26, 2001.

            On October 30, 2001, she wrote to Governor Caballero apprising him, among other things, that she has reported back to the Human Resource Management Division. In response thereto, Governor Caballero in his letter dated November 5, 2001 said, thus:

            "Referring to your letter of 30 October 2001, please be informed that Office Order No. 025-2001 has not been recalled or modified by any subsequent order or issuances made by this office.

            "As such, your legal place of work is still with the Office of the Provincial Governor. Your non-reporting to the Office is tantamount to absence without leave."

            On the same date, November 5, 2001, Governor Caballero required Gellegani to explain in writing why she should not be administratively charged for falsifying her daily time record, specifically for her failure to record her attendance in the Computerized Attendance Tracking System (CATS) at the Office of the Provincial Governor after the conduct of the personnel audit. Gellegani explained that she did not falsify her daily time record and claimed that:

"02. Up to October 26, 2001 I was finalizing my PHO personnel audit report, hence, I was logging-in/timing-in through Computerized Attendance Tracking System (CATS) at the PHO, therefore I did not falsify my DTR. Furthermore, even my October 01-15, 2001 DTR was initialed by Dr. Basanes because even the other PHO personnel actually saw and witnessed my audit work. After Dr. Basanes initialed my DTR, Atty. Ranario signed it, I was informed that subsequently Atty. Ranario had his signature erased, and Dr. Basanes also had his initial erased. I then had an audience with Atty. Ranario asking why he had his signature erased when in fact he is still my immediate superior, he said that he is just following orders. So I tried to trace my DTR and M. Labrador, PHO AO-Designate said that you will be the one to sign my DTR. Consequently, I forwarded said DTR to you for signature and in your behalf Mr. J. Reterba signed x x x.

"03. After I finished my personnel audit at PHO, as stated in my letter of October 30, 2001, I returned to my official work station, Human Resource Management Division, Office of the Governor;"

            On November 22, 2001, Governor Caballero issued a Formal Charge to Gellegani charging her with Dishonesty, Falsification of Official Documents, Conduct Grossly Prejudicial to the Best Interest of the Service, Gross Neglect of Duty and Insubordination. Likewise, the formal charge contained a directive placing Gellegani under preventive suspension for a period not exceeding ninety (90) days effective from receipt thereof.

            Thus, the instant appeal.

            The focal issue to be resolved is whether the imposition of the preventive suspension upon Gellegani is in order and in accordance with the Civil Service law and rules and existing jurisprudence.

            The Commission rules in the negative.

            At the outset, the ninety (90)-day preventive suspension imposed upon Gellegani is clearly repugnant to Section 85(a) of the Local Government Code of 1991 which provides, as follows:

            "Section 85. Preventive Suspension of Appointive Local Officials and Employees. – (a) The local chief executives may preventively suspend for a period of sixty (60) days any subordinate official or employee under his authority pending investigation if the charge against such official or employee involves dishonesty, oppression, grave misconduct or neglect in the performance of duty, or if there is a reason to believe that the respondent is guilty of charges which would warrant his removal from the service." (Underlining supplied)

            As can be gleaned from the aforequoted provision, local chief executives are empowered to place under preventive suspension any subordinate appointive official or employee pending investigation of the charge against the latter involving offenses enumerated therein for a maximum period of sixty (60) days

only. In the formal charge issued by Governor Caballero, Gellegani was placed under preventive suspension for a period of ninety (90) days which is, thus, violative of the aforementioned law.

            Moreover, Section 19 of the Uniform Rules on Administrative Cases in the Civil Service provides, as follows:

            "Section 19. Preventive Suspension. – Upon petition of the complainant or motu proprio, the proper disciplining authority may issue an order of preventive suspension upon service of the Formal Charge, or immediately thereafter to any subordinate officer or employee under his authority pending an investigation, if the charge involves:

`a. dishonesty;`b. oppression;`c. grave misconduct;`d. neglect  in  the performance of duty; or`e. if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

            "An order of preventive suspension may be issued to temporarily remove the respondent from the scene of his misfeasance or malfeasance and to preclude the possibility of exerting undue influence or pressure on the witnesses against him or tampering of documentary evidence on file with his Office.

            "In lieu of preventive suspension, for the same purpose, the proper disciplining authority or head of office, may reassign respondent to other unit of the agency during the formal hearings."

            Apparently, Governor Caballero is banking on the notion, albeit erroneous, that it is mandatory on the part of the disciplining authority to always place an employee charged with any of the offenses enumerated under the aforequoted rule under preventive suspension.

            It bears emphasis that preventive suspension must "be resorted to with caution taking into consideration the fact that the same (preventive suspension) will entail deprivation of work and salary during the period of suspension" (CSC Resolution No. 96-2570 dated April 11, 1996). Preventive suspension is a remedy resorted to "to prevent the accused from hampering the normal course of the investigation with his influence and authority over possible witnesses or to keep him off the records and other evidence" (Bunye vs. Escareal, 226 SCRA 332, citing Ganzon vs. CA, 200 SCRA 271).

            There is no dispute that Gellegani was charged with offenses which are among those enumerated in Section 19, supra. This alone, however, cannot be used as a basis to preventively suspend her. There must first be a showing that her presence in the workplace may hamper the normal course of the investigation against her or that she may unduly influence or pressure the witnesses or tamper with the pieces of evidence that may be presented against her.

            As records will show, Gellegani was directed to report back to the Office of the Provincial Governor after she completed the personnel audit at the Provincial Health Office so that granting without admitting that her position could have enabled her to exert undue influence over possible witnesses, she could not do so since she was made to work in the Office of the Governor located at the Governor's residence where she was initially tasked to man the garage to monitor the visitors coming to the Governor’s residence and later at the house of the Governor itself where she was not given any work. Needless to state, she was far from her official place of business and she performed menial, if not no work at all.

            In sum, there is no showing from the records that Gellegani is in a position to forestall the normal course of the investigation against her. Considering her present state, she could not possibly use her position to harass witnesses or tamper documents and other pieces of evidence that may be offered

against her. This being the case, the Commission finds no factual nor legal basis to preventively suspend Gellegani.

            Finally, it bears emphasis that Gellegani’s reassignment to the Office of the Governor is tantamount to constructive dismissal when she was tasked to perform menial job at the garage of the Governor’s residence. This being so, she should be restored to her position as Human Resource Management Officer IV at the Provincial Capitol. Besides, granting ex-argumenti that her reassignment which took effect on July 9, 2001 is indeed in the exigency of the service, she should be restored to her official station at the Capitol by July 10, 2002 or after the lapse of one (1) year considering that this is a case of unconsented reassignment contemplated in Section 6(a), Rule III of CSC Memorandum Circular No. 40, s. 1998 otherwise known as the Revised Omnibus Rules on Appointments and Other Personnel Actions which reads, thus:

            "Section 6. Other Personnel Movements. – x x x

"a. Reassignment – xxx. If reassignment is without the consent of the employee being reassigned it shall be allowed only for a maximum period of one (1) year. x x x

x x x

            "Constructive Dismissal exists when an employee quits his work because of the agency head’s unreasonable, humiliating, or demeaning actuations which render continued work impossible. Hence, the employee is deemed to have been illegally dismissed. This may occur although there is no diminution or reduction of salary of the employee. It may be a transfer from a position of dignity to a more servile or menial job."

            WHEREFORE, the appeal of Ma. Cynthia P.A. Gellegani is hereby GRANTED. Accordingly, the directive of Governor Jose R. Caballero of Compostela Valley, placing her under preventive suspension for a period not exceeding ninety (90) days, contained in the Formal Charge dated November 22, 2001, is not in order. Moreover, she is entitled to the payment of backwages for the period in excess of the prescribed 60 days.

            Quezon City, AUG 05 2002

 (Signed)

J. WALDEMAR V. VALMORESCommissioner

(Signed)KARINA CONSTANTINO-DAVID

Chairman

      

(Signed)JOSE F. ERESTAIN, JR.

Commissioner

 

Attested by:

(Signed)ARIEL G. RONQUILLO

Director III

fpg/rtm/x4/y8(j)/rcogellegan/d-

SECOND DIVISION

EXECUTIVE JUDGE LEONILO A.M. No. P-06-2206

B. APITA, Regional Trial Court,

Branch 7, Tacloban City, Present:

Complainant, CARPIO, J.,

Chairperson,LEONARDO-DE

CASTRO,*

PERALTA,- versus - ABAD, and

MENDOZA, JJ.

MARISSA M. ESTANISLAO,

Court Legal Researcher II,

Regional Trial Court, Branch 34, Promulgated:

Tacloban City,

Respondent. March 16, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - x

R E S O L U T I O N

 

CARPIO, J.:

The Case

This is an administrative complaint for insubordination filed by Executive

Judge Leonilo B. Apita of the Regional Trial Court (Branch 7) of Tacloban City

against respondent Marissa M. Estanislao, Court Legal Researcher II in

Branch 34 of the same court.

The Facts

In 2004, Atty. Pamela A. Navarrete, Court Interpreter in Branch 7 of the RTC

of Tacloban City, was appointed as Clerk IV under Justice Pampio Abarintos of

the Court of Appeals, leaving the position of Court Interpreter in Branch 7

vacant. Judge Apita designated respondent to act as Court Interpreter in the

said Branch until the vacancy was filled up.1

However, respondent refused to act as Court Interpreter claiming that her

designation was a demotion tantamount to removal from the service without

cause; that interpreting during trials was not included in the duties and

responsibilities of her present position; and that she was not defying Judge

Apita’s directive, but merely asserting her right as a civil service employee

holding a permanent appointment.2

In his Complaint3 for insubordination filed in the Office of the Court

Administrator (OCA), Judge Apita requested the OCA to rule whether his

directive designating respondent as Court Interpreter in Branch 7 was valid

and if so, whether respondent may be subjected to administrative sanctions

for insubordination.

The Complaint was docketed as OCA-IPI No. 04-2051-P. The OCA forthwith

required respondent to submit her Comment.4

In her Comment,5 respondent maintained that acting as Court Interpreter

was outside the scope of her job description as Legal Researcher and

constituted a demotion tantamount to removal from the service without

cause.

The OCA’s Report and Recommendation

The OCA, in its Report and Recommendation,6 found respondent liable for

insubordination. According to the OCA, Judge Apita acted well within his

authority in designating respondent as Court Interpreter in view of the

vacancy in the position. The OCA explained that respondent had no right to

defy Judge Apita’s directive in the absence of any showing of abuse of

discretion or any proof that the designation was due to some improper

motive. The OCA recommended that respondent be suspended from the

service for one (1) month and one (1) day with a warning that a repetition of

the same or similar act in the future shall be dealt with more severely, thus:

Respectfully submitted for the consideration of the Honorable Court are our recommendations that:

1. This matter be FORMALLY DOCKETED as an administrative complaint against Marissa M. Estanislao, Legal Researcher, RTC, Branch 34, Tacloban City; and

2. Marissa M. Estanislao be SUSPENDED for one (1) month and one (1) day for insubordination with a WARNING that a repetition of the same or similar act in the future shall be dealt with more severely.7

The Court’s Ruling

This is an administrative complaint of first impression involving the

designation of court personnel by an executive judge. Judge Apita admitted

he was unsure whether he could designate a Legal Researcher from one

branch to act as a Court Interpreter in another branch of the same court.

Hence, he brought the matter to the OCA for a ruling.

In Castro v. Bague,8 the Sheriff IV of the RTC (Branch 1) of Tagbilaran City

was designated to act as Deputy Sheriff in the Office of the Clerk of Court to

fill a temporary vacancy. The Court did not question the designation since

the duties of a Sheriff IV are identical with the duties of a Deputy Sheriff as

described in the 2002 Revised Manual for Clerks of Court9 (Manual), which

defines the general functions of all court personnel in the judiciary.

Under 2.2.4 of Chapter VI, Volume I of the Manual, the Sheriff IV is tasked

with serving writs and processes of the court; keeping custody of attached

properties; and maintaining the record book on writs of execution, writs of

attachment, writs of replevin, writs of injunction, and all other processes.

Under 2.1.5 of the same Chapter, the Deputy Sheriff serves writs and

processes of the court; keeps custody of attached properties; and maintains

the record book on writs of execution, writs of attachment, writs of replevin,

writs of injunction, and all other processes. Unarguably, the Sheriff IV and the

Deputy Sheriff perform exactly the same functions.

The duties of a Legal Researcher in the RTC are described under 2.2.1 of

Chapter VI, Volume I of the Manual, to wit:

1. verifies authorities on questions of law raised by parties- litigants in cases brought before the Court as may be assigned by the Presiding Judge;

2. prepares memoranda on evidence adduced by the parties after the hearing;

3. prepares outlines of the facts and issues involved in cases set for pre-trial for the guidance of the Presiding Judge;

4. prepares indexes to be attached to the records showing the important pleadings filed, the pages where they may be found, and in general, the status of the case;

5. prepares and submits to the Branch Clerk of Court a monthly list of cases or motions submitted for decision or resolution, indicating therein the deadlines for acting on the same; and

6. performs such other duties as may be assigned by the Presiding Judge or the Branch Clerk of Court.

On the other hand, 2.2.3 of Chapter VI, Volume I of the Manual describes the

functions of a Court Interpreter in the RTC thus:

1. acts as translator of the court;2. attends court hearings;3. administers oath to witnesses;

4. marks exhibits introduced in evidence and prepares the corresponding list of exhibits;

5. prepares and signs minutes of the court session;

6. maintains and keeps custody of record book of cases calendared for hearing;

7. prepares court calendars and the records of cases set for hearing; and

8. performs such other functions as may, from time to time, be assigned by the Presiding Judge and/or Branch Clerk of Court.

Notably, the duties of a Legal Researcher are vastly different from those of a

Court Interpreter. A Legal Researcher focuses mainly on verifying legal

authorities, drafting memoranda on evidence, outlining facts and issues in

cases set for pre-trial, and keeping track of the status of cases. On the other

hand, a Court Interpreter is limited to acting as translator of the court,

administering oaths to witnesses, marking exhibits, preparing minutes of

court session, and preparing the court calendar.

While the Manual provides that court personnel may perform other duties

the presiding judge may assign from time to time, said additional duties

must be directly related to, and must not significantly vary from, the court

personnel’s job description. However, in case of a sudden vacancy in a court

position, the judge may temporarily designate a court personnel with the

competence and skills for the position even if the duties for such position are

different from the prescribed duties of the court personnel. The temporary

designation shall last only for such period as is necessary to designate

temporarily a court personnel with the appropriate prescribed duties. Such

temporary designation cannot go on for an indefinite period, or until the

vacancy is filled up like in the designation by Judge Apita to respondent in

this case.

Section 7, Canon IV of the Code of Conduct for Court Personnel10 expressly

states that court personnel shall not be required to perform any work outside

the scope of their job description, thus:

Sec. 7. Court personnel shall not be required to perform any work or duty outside the scope of their assigned job description. (Emphasis supplied)

In Re: Report of Senior Chief Staff Officer Antonina A. Soria on the Financial

Audit Conducted on the Accounts of Clerk of Court Elena E. Jabao, Municipal

Circuit Trial Court, Jordan-Buenavista-Nueva Ecija, Guimaras,11 the Clerk of

Court of the Municipal Circuit Trial Court (MCTC) of Jordan-Buenavista-Nueva

Valencia in Guimaras was designated to act as Court Stenographer in

addition to her duties as Clerk of Court to fill in for the newly appointed Court

Stenographer who was not yet well-versed in stenography. The designation

passed the Court’s scrutiny as the duties of a Court Stenographer are

subsumed under the general responsibilities of a Clerk of Court since Clerks

of Court exercise control and supervision over Court Stenographers.

In the instant case, both Legal Researcher and Court Interpreter are subject

to the control and supervision of the Clerk of Court.12 Since Legal

Researchers do not exercise control and supervision over Court

Interpreters,13the duties of a Court Interpreter cannot be deemed subsumed

under the general functions of a Legal Researcher.

While the executive judge may not require court personnel to perform work

outside the scope of their job description, except duties that are identical

with or are subsumed under their present functions, the executive judge may

reassign court personnel of multiple-branch courts to another branch within

the same area of administrative supervision when there is a vacancy or when

the interest of the service requires, after consultation with the presiding

judges of the branches concerned. Section 6, Chapter VII of A.M. No. 03-8-02-

SC Re: Guidelines on the Selection and Designation of Executive Judges and

Defining their Powers, Prerogatives and Duties14 so provides:

Sec. 6. Reassignment of lower court personnel. – (a) Executive Judges of the RTCs shall continue to have authority to effect the following temporary assignments within his/her area of administrative supervision:

1. Personnel of one branch to another branch of a multiple-branch court;x x x x

Reassignments shall be made only in case of vacancy in a position in a branch, or when the interest of the service so requires. In either case, the assignment shall be made only after consultation with the Presiding Judges of the branches concerned. In case of any disagreement, the matter shall be referred to the OCA for resolution. (Emphasis supplied)

However, consistent with Section 7, Canon IV of the Code of Conduct for

Court Personnel, the reassignment of court personnel in multiple-branch

courts to another branch within the same area of the executive judge’s

administrative supervision must involve (1) work within the scope of the

court personnel’s job description or (2) duties that are identical with or are

subsumed under the court personnel’s present functions.

In this case, since respondent’s job description is that of Legal Researcher,

Judge Apita may not designate her to act as Court Interpreter indefinitely or

until the vacancy is filled up. The said designation will require respondent to

perform work, which is outside the scope of her job description and which

involves duties not identical with or subsumed under respondent’s current

functions. To do so would violate the express language of Section 7, Canon

IV of the Code of Conduct for Court Personnel.

This rule is rooted in the time-honored constitutional principle that public

office is a public trust. Hence, all public officers and employees, including

court personnel in the judiciary, must serve the public with utmost

responsibility and efficiency.15 Exhorting court personnel to exhibit the

highest sense of dedication to their assigned duty necessarily precludes

requiring them to perform any work outside the scope of their assigned job

description, save for duties that are identical with or are subsumed under

their present functions.

Indeed, requiring a Legal Researcher to perform the work of a Court

Interpreter is counter-productive and does not serve the ends of justice. Not

only will respondent jeopardize her present position as Legal Researcher by

constantly shifting from one job to another, her qualification as Court

Interpreter will also be put in question. This arrangement does nothing but

compromise court personnel’s professional responsibility and optimum

efficiency in the performance of their respective roles in the dispensation of

justice.

Judge Apita may not designate respondent to act as Court Interpreter for an

indefinite period or until a new Court Interpreter is appointed. To meet a

sudden vacancy or emergency, Judge Apita may only designate respondent

in an acting capacity pending designation of a Court Interpreter from another

branch of the RTC of Tacloban City to temporarily fill the vacancy in Branch 7

of the same court. This would have been in accord with pertinent rules

governing the reassignment of, and the code of conduct for, court personnel.

WHEREFORE, we DISMISS for lack of merit the instant administrative

complaint for insubordination filed by Executive Judge Leonilo B. Apita of the

Regional Trial Court (Branch 7) of Tacloban City against respondent Marissa

M. Estanislao, Legal Researcher II in Branch 34 of the same court.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE C. MENDOZA

Associate Justice *Designated additional member per Special Order No. 933-A dated 24 January 2011.

1Rollo, p. 24.

2Id. at 25-26, 28-30.

3Id. at 2-6.

4Id. at 14.

5Id. at 16-23.

6Id. at 35-36.

7Id. at 36.

8411 Phil. 532 (2001).

9Dated 8 March 2002.

10Otherwise known as A.M. No. 03-06-13-SC. Effective 1 June 2004.

11359 Phil. 385 (1998).

12Chapter VI, Volume I of the 2002 Revised Manual for Clerks of Court.

13Id.

14Approved 27 January 2004.

15Court Personnel of the Office of the Clerk of Court of the Regional Trial Court-San Carlos City v. Llamas, 488 Phil. 62 (2004).

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 01-12-629-RTC               June 15, 2005

RE: REQUEST OF MR. MELITO E. CUADRA, PROCESS SERVER, RTC, Branch 100, Quezon City to the RC, Branch 18, Tagaytay City,

D E C I S I O N

TINGA, J.:

Melito E. Cuadra, Process Server at the Quezon City Regional Trial Court (RTC), Branch 100, was detailed to the Tagaytay City RTC, Branch 18 from 12 October 1995 until 12 April 1996, per his request.1 Cuadra was able to get extensions of the detail, such that he was continuously detailed to Branch 18 until April 1997. His requests for detail and for the numerous extensions thereof were uniformly based on the following reasons:

a.) I commute daily to Quezon City from my residence at Brgy. Anuling, Mendez, Cavite which is more or less 80 kilometers, wasting so much time and effort in the process;

b.) With four children to support, trying to make both ends meet has become more and more difficult for me especially now that the bus and jeepney fares from my place in Cavite to Quezon City had all increased;

c.) I am requesting my detail to cut down on traveling time and expenses, thus making me save a little for my children’s needs.

d.) That this is my family’s only source of income and if such detail would not be extended, we would not be able to survive.2

When Cuadra requested for another extension in April 1997, Assistant Court Administrator (ACA) Antonio Dujua furnished Cuadra a copy of Supreme Court Circular No. 18-97 prescribing the "Guidelines on the Detail and Reassignment of Personnel of the Lower Courts." The Circular provides, among others, that the detail of court personnel is allowed only for a period of three (3) months and any extension of the detail thereafter shall be for a period of three (3) months only and may be granted solely for meritorious reasons or when exigencies and interest of the service require the same. On 04 July 1997, Cuadra requested for another extension. His request remained unacted upon but he continued reporting to the Tagaytay City RTC. In a Resolution dated 15 January 2002, the Court resolved to authorize the extension of Cuadra’s detail to the Tagaytay City RTC, Branch 18 up to 30 April 2002, with warning that no further extension of his detail will be granted, and advised Cuadra to apply for transfer to any court he thinks will accomplish the purpose of his detail to Tagaytay City. The Court also noted that Cuadra’s stay at the Tagaytay City RTC since 14 April 1997 was not covered by any previous authority.3

On 04 June 2002, the Court approved another request of Mr. Cuadra for extension of his detail for a period of one (1) year, and advised him to immediately apply for permanent transfer thereto so as not to prejudice his official station at the Quezon City RTC, Branch 100, which has been deprived of the services of a Process Server since October 1995.

In a letter dated 25 June 2003, Deputy Court Administrator (DCA) Christopher O. Lock informed Cuadra that his detail had already expired as of 04 June 2003. DCA Lock directed him to immediately report to his official station in Quezon City and required him to submit his certificate of assumption of duty duly signed by the Quezon City RTC Branch Clerk of Court concerned. Cuadra was warned that his failure to comply with such directive will be a ground for disciplinary action.lawphil.net

Thereafter, on 21 October 2003, the Court issued a Resolution (a) denying with finality Cuadra’s request for another extension considering that he had been previously granted several extensions; and (b) directing him to explain why no disciplinary action should be imposed upon him for his failure to report to his official station in Quezon City after the expiration of his detail on 04 June 2003.

On 04 December 2003, the Office of the Court Administrator (OCA) received Cuadra’s letter-explanation.4 Apologizing for his failure to report to his official station in Quezon City, Cuadra explained that he continuously served at the Tagaytay City RTC pending resolution of his 07 July 2003 letter-request, believing in good faith that his request for another extension would be granted, considering that the Tagaytay City RTC is a single-sala court which has a voluminous caseload. He added that upon receipt of the 21 October 2003 Resolution on 19 November 2003, he completed his pending tasks before the Tagaytay City RTC and reported for work at the Quezon City RTC. Attached to the letter-explanation is a Certification from Atty. Ana Liza M. Luna, Clerk of Court, Tagaytay City RTC, Branch 18, stating that Cuadra reported to said branch up to 30 November 2003. On the other hand, Ms. Vivian A. Reamo, Officer-in- Charge of

Quezon City RTC, Branch 100 has issued a certification that Cuadra re-assumed his duty therein only on 05 January 2004.

On 23 November 2004, the Court En Banc referred this administrative matter to the OCA for evaluation, report and recommendation.5 In its Memorandum dated 23 December 2003, the OCA noted that Cuadra was privileged to have been generously granted by the Court several extensions for detail, an accommodation which was not given to most other court personnel who filed similar requests. His detail was necessitated by the exigencies of the service as well as the indorsements made by the presiding judges of the Tagaytay City Court, and partly for humanitarian considerations, taking into account his economic status.

Nevertheless, the benevolent and humanitarian approach of the Court to his problem was not appreciated by Cuadra. Neither did he reciprocate the Court’s generous act with timely compliance with the instruction to return to his original action. Further, the OCA noted that Cuadra did not immediately apply for appointment to the then existing vacant position of Clerk III in the Tagaytay City RTC despite the Court’s advice on 15 January 2002, which shows his lack of interest in permanently transferring to the said court. The OCA added that despite Presiding Judge Alfonso S. Garcia’s statement that his court cannot effectively carry out its tasks on time without the presence of Cuadra,6 the former did not recommend him to the vacant position of Clerk III, and instead recommended an outsider applicant. The OCA opined that this implies that Cuadra is not indispensable to the Tagaytay City RTC.7

On a different note, the OCA observed that the presiding judges of the court where he was detailed kept on indorsing his requests for extension, and despite the expiry of his period of detail, his official station in Quezon City did not request for his return, much less contest or object to another request for extension or approval. Likewise, the OCA found that since Cuadra joined the judiciary in 1986, no complaint has been filed against him. Thus, the OCA concluded by saying:

The foregoing notwithstanding, Mr. Cuadra should not escape administrative liability although it could not be conclusively said that his act of disobeying the order of a superior officer was accompanied by bad faith due to the above reasons. The glaring fact is that he had committed willful disobedience or insubordination for which he deserves to be sanctioned, albeit with mitigated liability.

Wherefore, we respectfully recommend for the consideration of the Honorable Court that Melito E. Cuadra, Process Server, Branch 100, Quezon City, Regional Trial Court, be found LIABLE FOR INSUBORDINATION and be penalized with SUSPENSION for fifteen (15) days with the WARNING that a repetition of the same or similar act in the future shall be dealt with more severely.8

We are in accord with the findings and observations of the OCA, save for the recommended penalty.

Insubordination properly refers to willful or intentional disregard of some lawful and reasonable instructions of the employer.9 Under Section 52 B (5) of the Revised Uniform Rules on

Administrative Cases in the Civil Service,10 insubordination is meted the penalty of suspension ranging from one (1) month and one (1) day to six (6) months for the first offense, and the penalty of dismissal for the second offense.

Clearly, there was insubordination when Cuadra refused to report to his station in Quezon City despite the Resolution of this Court requiring him to do so. Therefore, the appropriate penalty is suspension for six (6) months, and not the recommended penalty of fifteen (15) days.

Every officer and employee in the judiciary is duty bound to obey the orders and processes of the Supreme Court without the least delay.11 A resolution of the Supreme Court requiring the performance of a positive action or response should not be construed as a mere request from the Court, nor should it be complied with partially, inadequately, or selectively. In failing to timely report to his station and to submit the required certification as per the Court’s Resolution, Cuadra demonstrated indifference, if not disobedience, to and disrespect for this Court to which he owes his fealty.

Let it not be forgotten that the interest of public service is more paramount than personal convenience.12 As an employee of the judiciary, Cuadra is first and foremost a public servant, and as such must first meet the exigencies of his position, before his personal interests. That his appointment brought inconvenience to Cuadra and his family is, and should be, of no moment. Yet the Court accommodated his requests, taking into consideration his personal circumstances and the perceived needs of the Tagaytay City RTC. Unfortunately, Cuadra saw the compassionate stance of the Court as unceasing, such that he was confident that his requests will always be granted, and ignored the orders for him to return to his station. As the Court has stated in Martinez v. Zoleta,13 benevolence is not limitless and patience, to be sure, is not without boundaries. These virtues must, at a definite point, yield to the higher considerations of justice and public service.14

WHEREFORE, for insubordination, MELITO E. CUADRA, Process Server, Quezon City Regional Trial Court, Branch 100 is hereby SUSPENDED for six (6) months with a WARNING that a repetition of the same or similar acts in the future shall be dealt with more severely.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia, JJ., concur.

Footnotes

1 The request was granted by then Deputy Court Administrator Reynaldo L. Suarez.

2 Rollo, p. 4.

3 Id. at 18-19.

4 Id. at 39.

5 Id. at 44.

6 Id. at 42.

7 Id. at 48.

8 Id. at 49-50.

9 Black’s Law Dictionary, 720, 5th ed.

10 Memorandum Circular No. 19, s. 1999.

11 Logatic v. Peñas, Jr., 342 Phil. 12, 19 (1997).

12 Quichoco v. Abrera, et al., 127 Phil.. 616 (1967).

13 374 Phil. 35 (1999).

14 Supra at 450.

The Lawphil Project - Arellano Law Foundation

Legal Q & A: Insubordination and termination

By   Atty.Reeza Singzon

Sep 18, 2012

Q: I heard that insubordination is enough ground to terminate an employee. What exactly is "insubordination" as contemplated in termination cases that have been pronounced lawful and valid?

 

A: The Labor Code states that willful disobedience to lawful orders--- also called "insubordination"---is one of the just causes for termination of employment.

Willful disobedience or insubordination requires the concurrence of two elements:

(1) the employee's disobedient conduct must have been willful, i.e. characterized by a wrongful and perverse attitude; and

 

(2) the order that the employee violated must have been reasonable, lawful, made known to him beforehand, and must pertain to the duties which he had been hired to do.

In a long line of termination cases, the Supreme Court has consistently stated that no employer may rationally be expected to continue in employment a person who has shown lack of morals,

respect, loyalty to his employer, regard for company rules and appreciation of the dignity and responsibility of his office.

Keeping such an employee would be highly prejudicial to the interests of the employer and would demoralize the rank and file once they see that the undeserving are retained in the service.

Nonetheless, in termination disputes involving insubordination, the employer still has the burden of proving that the dismissal is valid and legal. This is consistent with the principle of security of tenure as guaranteed by the Constitution and the Labor Code.

 

Reeza Singzon is a lawyer specializing in civil, commercial, and labor law. Before becoming a lawyer, she worked in media for more than 10 years, writing and producing news programs for TV and working as an editor and columnist for a newspaper. For questions or comments, Atty. Reeza may be reached at reeza.singzon@gmail.com. 

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 124678 July 31, 1997

DELIA BANGALISAN, LUCILIN CABALFIN, EMILIA DE GUZMAN, CORAZON GOMEZ, CORAZON GREGORIO, LOURDES LAREDO, RODOLFO MARIANO, WILFREDO MERCADO, LIGAYA MONTANCES and CORAZON PAGPAGUITAN, petitioners, vs.HON. COURT OF APPEALS, THE CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

 

REGALADO, J.:

This is an appeal by certiorari from the judgment of the Court of Appeals in CA-G.R. SP No. 38316, which affirmed several resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service, as well as its resolution of April 12, 1996 denying petitioners' motion for reconsideration. 1

Petitioners, except Rodolfo Mariano, were among the 800 public school teachers who staged "mass actions" on September 17 to 19, 1990 to dramatize their grievances concerning, in the main, the alleged failure of the public authorities to implement in a just and correct manner certain laws and measures intended for their material benefit.

On September 17, 1990, the Secretary of the Department of Education, Culture and Sports (DECS) issued a Return-to-Work Order. Petitioners failed to comply with said order, hence they were charged by the Secretary with "grave misconduct; gross neglect of duty; gross violation of Civil Service law, rules and regulations and reasonable office regulations; refusal to perform official duty; gross insubordination; conduct prejudicial to the best interest of the service; and absence without official leave in violation of PD 807, otherwise known as the Civil Service Decree of the Philippines." They were simultaneously placed under preventive suspension.

Despite due notice, petitioners failed to submit their answer to the complaint. On October 30, 1990, the DECS Secretary rendered a decision finding petitioners guilty as charged and dismissing them from the service effective immediately.

Acting on the motions for reconsideration filed by petitioners Bangalisan, Gregorio, Cabalfin, Mercado, Montances and Pagpaguitan, the Secretary subsequently modified the penalty of dismissal to suspension for nine months without pay.

Petitioner Gomez likewise moved for reconsideration with the DECS and then appealed to the Merit Systems Protection Board (MSPB). The other petitioners also filed individual appeals to the MSPB, but all of their appeals were dismissed for lack of merit.

Not satisfied with the aforestated adjudication of their respective cases, petitioners appealed to the Civil Service Commission (CSC). The appeals of petitioners Cabalfin, Montances and Pagpaguitan were dismissed for having been filed out of time. On motion for reconsideration, however, the CSC decided to rule on the merits of their appeal in the interest of justice.

Thereafter, the CSC issued Resolution No. 94-1765 finding Cabalfin guilty of conduct prejudicial to the best interest of the service and imposing on him a penalty of six months suspension without pay. The CSC also issued Resolutions Nos. 94-2806 and 94-2384 affirming the penalty of nine months suspension without pay theretofore imposed on petitioners Montances and Pagpaguitan.

With respect to the appeals of the other petitioners, the CSC also found them guilty of conduct prejudicial to the best interest of the service. It, however, modified the penalty of nine months suspension previously meted to them to six months suspension with automatic reinstatement in the service but without payment of back wages.

All the petitioners moved for reconsideration of the CSC resolutions but these were all denied, 2 except that of petitioner Rodolfo Mariano who was found guilty only of a violation of reasonable office rules and regulations because of his failure to inform the

school of his intended absence and to file an application for leave therefor. This petitioner was accordingly given only a reprimand. 3

Petitioners then filed a petition for certiorari with this Court but, on August 29, 1995, their petition was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95. 4

On October 20, 1995, the Court of Appeals dismissed the petition for lack of merit. 5 Petitioners' motion for reconsideration was also denied by respondent court, 6 hence the instant petition alleging that the Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the CSC (1) that penalized petitioners whose only offense was to exercise their constitutional right to peaceably assemble and petition the government for redress of grievances; (2) that penalized petitioner Mariano even after respondent commission found out that the specific basis of the charges that former Secretary Cariño filed against him was a falsehood; and (3) that denied petitioners their right to back wages covering the period when they were illegally not allowed to teach. 7

It is the settled rule in this jurisdiction that employees in the public service may not engage in strikes. While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public services. The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike. 8

Petitioners contend, however, that they were not on strike but were merely exercising their constitutional right peaceably to assemble and petition the government for redress of grievances. We find such pretension devoid of merit.

The issue of whether or not the mass action launched by the public school teachers during the period from September up to the first half of October, 1990 was a strike has been decided by this Court in a resolution, dated December 18, 1990, in the herein cited case of Manila Public School Teachers Association, et al. vs. Laguio, Jr., supra. It was there held "that from the pleaded and admitted facts, these 'mass actions' were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons."

It is an undisputed fact that there was a work stoppage and that petitioners' purpose was to realize their demands by withholding their services. The fact that the conventional term "strike" was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation, and not its appearance, will be deemed to be controlling. 9

The ability to strike is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose. 10

Further, herein petitioners, except Mariano, are being penalized not because they exercised their right of peaceable assembly and petition for redress of grievances but because of their successive unauthorized and unilateral absences which produced adverse effects upon their students for whose education they are responsible. The actuations of petitioners definitely constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law, rules and regulations.

As aptly stated by the Solicitor General, "It is not the exercise by the petitioners of their constitutional right to peaceably assemble that was punished, but the manner in which they exercised such right which resulted in the temporary stoppage or disruption of public service and classes in various public schools in Metro Manila. For, indeed, there are efficient but non-disruptive avenues, other than the mass actions in question, whereby petitioners could petition the government for redress of grievances." 11

It bears stressing that suspension of public services, however temporary, will inevitably derail services to the public, which is one of the reasons why the right to strike is denied government employees. 12 It may be conceded that the petitioners had valid grievances and noble intentions in staging the "mass actions," but that will not justify their absences to the prejudice of innocent school children. Their righteous indignation does not legalize an illegal work stoppage.

As expounded by this Court in its aforementioned resolution of December 18, 1990, in the Manila Public School Teachers Association case, ante:

It is, of course, entirely possible that petitioners and their member-teachers had and have some legitimate grievances. This much may be conceded. After all, and for one thing, even the employees of the Court have found reason to complain about the manner in which the provisions of the salary standardization law on pay adjustments and position classification have been, or are being, implemented. Nonetheless, what needs to be borne in mind, trite though it may be, is that one wrong cannot be righted by another, and that redress, for even the most justifiable complaints, should not be sought through proscribed or illegal means. The belief in the righteousness of their cause, no matter how deeply and fervently held, gives the teachers concerned no license to abandon their duties, engage in unlawful activity, defy constituted authority and set a bad example to their students.

Petitioners also assail the constitutionality of Memorandum Circular No. 6 issued by the Civil Service Commission. The resolution of the said issue is not really necessary in the case at bar. The argument of petitioners that the said circular was the basis of` their liability is off tangent.

As a general rule, even in the absence of express statutory prohibition like Memorandum Circular No. 6, public employees are denied the right to strike or engage in a work stoppage against a public employer. 13 The right of the sovereign to prohibit strikes or work stoppages by public employees was clearly recognized at common law. Indeed, it is frequently declared that modern rules which prohibit such strikes, either by statute or by judicial decision, simply incorporate or reassert the common law rule. 14

To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor. 15 In the absence of any express legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, employees in the public service may not engage in strikes, walkouts and temporary work stoppages like workers in the private sector. 16

On the issue of back wages, petitioners' claim is premised on the allegation that their preventive suspension, as well as the immediate execution of the decision dismissing or suspending them, are illegal. These submissions are incorrect.

Section 51 of Executive Order No. 292 provides that "(t)he proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service."

Under the aforesaid provision, it is the nature of the charge against an officer or employee which determines whether he may be placed under preventive suspension. In the instant case, herein petitioners were charged by the Secretary of the DECS with grave misconduct, gross neglect of duty, gross violation of Civil Service law, rules and regulations, and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service and absence without official leave (AWOL), for joining the teachers' mass actions held at Liwasang Bonifacio on September 17 to 21, 1990. Hence, on the basis of the charges against them, it was within the competence of the Secretary to place herein petitioners under preventive suspension.

As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2), of Executive Older No. 292, thus: "The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned."

Petitioners' claim of denial of due process must also fail. The records of this case clearly show that they were given opportunity to refute the charges against them but they failed to avail themselves of the same. The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to seek reconsideration of the action or ruling complained of. 17 For as long as the parties were given the opportunity to be heard before judgment was rendered, the demands of due process were sufficiently met. 18

Having ruled that the preventive suspension of petitioners and the immediate execution of the DECS decision are in accordance with law, the next query is whether or not petitioners may be entitled to back wages.

The issue regarding 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 our jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused the suspension and when the suspension is unjustified. 19

With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.

However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school or his intended absence and neither did he file an application for leave covering such absences. 20

Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service. 21

However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension.

The denial of salary to an employee during the period of his suspension, if he should later be found guilty, is proper because he had given ground for his suspension. It does not impair his constitutional rights because the Constitution itself allows suspension for

cause as provided by law and the law providesthat an employee may be suspended pending an investigation or by way of penalty. 22

Moreover, the general proposition is that a public official is not entitled to any compensation if he has not rendered any service. As he works, he shall earn. Since petitioners did not work during the period for which they are now claiming salaries, there can be no legal or equitable basis to order the payment of such salaries. 23

It is also noteworthy that in its resolutions, the Civil Service Commission expressly denied petitioners' right to back wages. In the case of Yacia vs. City of Baguio, 24 the decision of the Commissioner of Civil Service ordering the dismissal of a government employee on the ground of dishonesty was immediately executed pending appeal, but, on appeal, the Civil Service Board of Appeals modified that penalty to a fine equivalent to six months pay. We ruled that the claim of an employee for back wages, for the period during which he was not allowed to work because of the execution of the decision of the Commissioner, should be denied.

The appeal board's modified decision did not exonerate the employee nor did it affect the validity of his dismissal or separation from work pending appeal, as ordered by the Civil Service Commissioner. Such separation from work pending his appeal remained valid and effective until it was set aside and modified with the imposition of the lesser penalty by the appeals board. If the Civil Service Appeals Board had intended to grant him back salaries and to reduce his penalty to six months fine deductible from such unearned back salaries, the board could and should have so expressly stated in its decision.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED, but with the MODIFICATION that petitioner Rodolfo Mariano shall be given back wages without deduction or qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence, should not exceed five years.

SO ORDERED.

Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.

Narvasa, C.J. and Torres, Jr., J., are on leave.

Footnotes

1 Penned by Justice Antonio M. Martinez, with Justices Delilah Vidallon-Magtolis and Romeo Callejo, Sr. concurring.

2 Rollo, CA-G.R. SP No. 38316, 50-85.

3 Ibid., id., 70-71.

4 Ibid., id., 131.

5 Rollo, 79-89.

6 Ibid., 91.

7 Ibid., 20-21.

8 See Manila Public School Teachers Association, et al. vs. Laguio, Jr., G.R. Nos. 95445 and 95590, August 6, 1991, 200 SCRA 323; Social Security System Employees Association, et al. vs. Court of Appeals, et al., G.R. No. 85279, July 28, 1989, 175 SCRA 686; Alliance of Government Workers, et al. vs. Minister of Labor and Employment, G.R. No 60403, August 3, 1983, 124 SCRA 1.

9 Board of Education v. New Jersey Education Association (1968) 53 NJ 29, 247 A2d 867.

10 48A Am. Jur. 2d, Public Employees, Sec. 2026, 407.

11 Rollo, 141-142.

12 Social Security System Employees Association, et al. vs. Court of Appeals, et al., supra.

13 Public Employees — Right To Strike, 37 ALR 3d 1156.

14 Ibid., 1150.

15 The Pinellas County Classroom Teachers Association, Inc. vs. The Board of Public Instruction of Pinellas County, Fla., 214 So. 2d 34.

16 Social Security System Employees Association, et al. vs. Court of Appeals, et al. supra.

17 Sunset View Condominium Corporation vs. National Labor Relations Commission, et al., G.R. No. 87799, December 15, 1993, 228 SCRA 466; Bautista vs. Secretary of Labor, G.R. No. 81374, April 30, 1991, 196 SCRA 470.

18 Lindo vs. COMELEC, G.R. No. 95016, February 11, 1991, 194 SCRA 251; see Esber, et al. vs. Sto. Tomas, et al., G.R. No. 107324, August 26, 1993, 225 SCRA 664.

19 Miranda vs. Commission on Audit, G.R. No. 84613, August 16, 1991, 200 SCRA 657; Abellera vs. City of Baguio, et al., G.R. No. L-23957, Match 18, 1967, 125 SCRA 1033; Tanala vs. Legaspi, et al., G.R. No. L-22537, March 31, 1965, 13 SCRA 566.

20 Rollo, 100-101.

21 See Tanala vs. Legaspi, et al., supra; Tan vs. Gimenez, et al., 107 Phil. 17 (1960).

22 Austria vs. Auditor General, G.R. No. L-21918, January 23, 1967, 19 SCRA 79.

23 See Sales vs. Mathay, Sr., et al., G.R. No. L-39557, May 3, 1984, 129 SCRA 180; Reyes vs. Hernandez, 71 Phil. 397 (1941).

24 G.R. No. L-27562, May 29, 1970, 33 SCRA 419.

The Lawphil Project - Arellano Law Foundation

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-22586             February 27, 1969

JULIANA B. BRILLANTES, plaintiff-appellant, vs.MARIANO R. GUEVARRA, defendant-appellee.

Agripino A. Brillantes and Celestino A. Brillantes for plaintiff-appellant. Office of the Solicitor General Arturo A. Alafriz Assistant Solicitor General Isidro C. Borromeo and Solicitor Dominador L. Quiroz for defendant-appellee.

SANCHEZ, J.:

          This appeal, solely "on questions of law" 1 tests the applicability of the constitutionally secured tenure provision to a 1962 administrative order requiring the transfer of principal teachers who have completed five years or more of service in one station, under which appellant, a principal assigned to Sinalang Elementary School, Bangued, Abra, was reassigned in 1963 to head the Peñarrubia Elementary School in Peñarrubia of the same province.

          Upon the issue tendered, we turn to the facts:

          Juliana B. Brillantes had been in the government service for 34 years. She was a PNC and BSE graduate with Junior and Senior Teacher eligibilities. On June 6, 1929, she started as a classroom teacher in the Manabo Elementary School, Bangued, and thereafter was transferred to different stations: Bangued, Peñarrubia, Sinalang, Padre Gomez and Bangued East Elementary Schools. 2 On September 1, 1951, she was assigned to Sinalang Elementary School in Bangued as acting principal thereof. She continued as principal in that school when she was permanently appointed, effective July 1, 1952, as "Principal (Elementary School) in the Bureau of Public Schools, Department of Education", in an appointment dated December 29, 1954. 3 When the Sinalang Elementary School was converted into a division pilot demonstration school, she was officially designated on September 19, 1961 principal thereof by the Superintendent of Schools, then Federico B. Ablan. 4

          Controversy started when Mariano R. Guevarra, the new Division Superintendent of Schools, released Division Letter 31 on April 16, 1963, advising all the elementary school principals in Abra of their respective new station assignments. 5 The transfers were made by authority of a Department of Education directive dated September 11, 1962 and an implementing order of the Director of Public Schools, Circular 28, series of 1962. 6

          A copy of the division letter, which served as a transfer order, was received by Juliana Brillantes. Her new station assignment was Peñarrubia Elementary School in the town of Peñarrubia situated six kilometers from her hometown of Bangued.

          Juliana Brillantes wrote Mariano R. Guevarra on April 24, 1963 requesting that she instead be assigned to the Bangued West Elementary School or be allowed to remain in Sinalang Elementary School. Three reasons were cited by her: (1) as she was a native and resident of Bangued, her husband a professional, with their child who was born abnormal requiring personal attention, her transfer would work hardships on her family; (2) her transfer was not required by the exigency of public service because there was no complaint against her as principal of Sinalang Elementary School or against the principal of Peñarrubia Elementary School; and (3) that the transfer was disciplinary in character and was made without due process of law. 7 The Superintendent stood firm.

          On July 2, 1963, plaintiff filed the verified complaint below. 8 Named defendant was Mariano R. Guevarra, the Division Superintendent of Schools. Said complaint sought a declaration of nullity of the transfer order, moral damages resulting therefrom and preliminary mandatory injunction. It averred that defendant acted in excess of his authority, in abuse of discretion and in violation of the Civil Service Law in issuing Division Letter 31; that her transfer was a demotion in rank, disciplinary in character, and yet she was not accorded due process of law.

          Defendant Mariano R. Guevarra answered on July 8, 1963 and opposed the issuance of the writ of preliminary mandatory injunction. The lower court granted the writ after hearing and upon the filing of the required bond.

          After trial on the merits following a partial stipulation of facts, the lower court rendered its decision of October 24, 1963 dismissing the complaint without costs, dissolving the injunction and cancelling the bond.

          On October 31, 1963, plaintiff moved to reconsider upon the ground that paragraph (a) (3) of Section 318 of the Service Manual, 9 Circular 28 and Division Letter 31, are unconstitutional, for they amount to her removal, a violation of her security of tenure protected by Section 4, Article XII of the Constitution. On November 14, 1963, defendant opposed. On November 20, 1963, the court perfunctorily rejected reconsideration.

          Plaintiff appealed to this Court.

          Plaintiff, against the insistence of school authorities that she proceed to Peñarrubia Elementary School pending appeal, refused to occupy the position for the reason that such action

might be construed as a waiver of her right to appeal and render the issue academic. Instead, on December 5, 1963, pending perfection of her appeal, she registered in the court below a motion for status quo. Opposed by defendant, the motion was denied by the lower court on December 17, 1963. On August 6, 1964, she reiterated her request in this Court by filing a Petition for a Declaration of Status Quo Pending Appeal. 10 The provincial fiscal, representing defendant Superintendent, offered no objection to the petition, 11 gave a retroactive application to Circular 18, series of 1964, which modified Circular 28, series of 1962, to the effect that transfers of principals must first be approved by the Director of Public Schools. But the Solicitor General opposed the petition, 12 against which plaintiff filed a refutation. 13

          An administrative charge for insubordination was instituted against Juliana B. Brillantes. On September 29, 1964, the Commissioner of Civil Service decided the administrative case for the insubordination against plaintiff by dismissing her from the service. Upon appellants motion for reconsideration of her dismissal, this sentence was modified on June 23, 1965 by reducing it to suspension for ten months without pay coupled with a warning.

          Plaintiff thus petitioned this Court that status quo be maintained and that the Commissioner be ordered to show cause why he should not be dealt with for contempt for declaring her guilty of insubordination pending appeal before this Court.

          Finally, on March 22, 1966, this Court resolved (a) to deny the petition for declaration of status quo; (b) to defer action on the petition that the Commissioner of Civil Service be required to show cause why he should not be punished for contempt and that the decision and resolution of the Commissioner finding plaintiff guilty of insubordination be declared null and void ab initio, until the decision of this case on the merits.

          1. Arguing that an appointment as principal in the Bureau of Public Schools and assignment to a particular school are inseparable, plaintiff maintains that her unconsented transfer to another school by virtue of an administrative directive amounts to a removal — prohibited by the Constitution and the Civil Service Act — which cannot be done unless for causes specified by law.

          Plaintiff's confident stride falters. She took too loose a view of the applicable jurisprudence. Her refuge behind the mantle of security of tenure guaranteed by the Constitution is not impenetrable. She proceeds upon the assumption that she occupies her station in Sinalang Elementary School by appointment. But her first appointment as Principal merely reads thus: "You are hereby appointed a Principal (Elementary School) in the Bureau of Public Schools, Department of Education, 15 without mentioning her station. She cannot therefore claim security of tenure as Principal of Sinalang Elementary School or any particular station. She may be assigned to any station as exigency of public service requires, even without her consent. 16 She thus has no right of choice.

          The rule pursued by plaintiff only goes so far as the appointment indicates a specific station. Otherwise, the constitutionally ordained security of tenure cannot shield her. In appointments of this nature, this Court has consistently rejected the officer's demand to remain — even as public service dictates that a transfer be made — in a particular station. Judicial

attitude toward transfers of this nature is expressed in the following statement in Ibañez vs. Commission on Elections: 17

          That security of tenure is an essential and constitutionally guaranteed feature of our Civil Service system, is not open to debate. The mantle of its protection extends not only against removals without cause but also against unconsented transfers which, as repeatedly enunciated, are tantamount to removals which are within the ambit of the fundamental guarantee. However, the availability of that security of tenure necessarily depends, in the first instance, upon "the nature of the appointment" (Hojilla vs. Marino, et al., G.R. L-20574, February 26, 1965). Such that the rule which proscribes transfers without consent as anathema to the security of tenure is predicated upon the theory that the officer involved is appointed — not merely assigned — to a particular station (Miclat vs. Ganaden, et al, G.R. L-14459, May 30, 1960; Jaro vs. Valencia, et al., G.R. L-18352, August 30, 1963).

          We hold that the transfer order by itself is not constitutionally infirm.

          2. The attack against the September 11, 1962 directive of the Department of Education and Circular 28, series of 1962, of the Director of Public Schools dated December 3, 1962, is as misdirected.

          By the foregoing directive and circular, a policy exists that certain school officials, amongst them elementary school principals, whose salaries are payable from the national funds are to be transferred upon completion of five years of service in one station in order to prevent a situation where they become "stale and unchallenged by new situations and conditions" and "administrative problems accumulate". 18

          The administrative order applies only to principals, supervisors, superintendents and administrative officers whose salaries are payable from the national funds and who, presumably, hold appointments of the same nature as plaintiff's, that is, without specific station. The order cannot therefore be violative of the constitutionally enshrined security of tenure. The only secured right of a holder of an appointment without specific station is the position itself but not the station to which he may have been assigned.

          The charge that the order is arbitrary may not be entertained. The Department of Education directive of September 11, 1962 is a valid exercise of the rule-making power of the Secretary of Education governing the internal regulation of officers under his Department. This power is granted to him by Section 79(B) of the Revised Administrative Code, quoted as follows:

          SEC. 79(B). Power to regulate. — The Department Head shall have power to promulgate, whenever he may see fit to do so, all rules, regulations, orders, circulars, memorandums, and other instructions, not contrary to law, necessary to regulate the proper working and harmonious and efficient administration of each and all of the offices and dependencies of his Department, and for the strict enforcement and proper execution of the laws relative to matters under the jurisdiction of said Department; ....

          In the same manner then, the implementing order of the Director of Public Schools in Circular 28, series of 1962, as well as the implementing letter of defendant Division Superintendent of Schools dated April 16, 1963 are not tainted with arbitrariness.

          3. Besides, the Department of Education directive left the door open for exemptions to the policy. It says: "Individual cases requiring exemption from this general policy [of transfer upon completion of five years] may be submitted to this Office for appropriate decision." The Secretary of Education could thus authorize such exemption.

          But plaintiff did not make any formal application of this nature with the Secretary of Education. If we treat her request made with the Director of Public Schools as equivalent to an application for exemption with the Secretary of Education, we cannot easily downgrade the former's decision denying her request. For, we perceive no abuse of discretion.

          Of course, she went to court on questions of law. By jurisprudence, this suffices to take her case out of the operative area of the principle of exhaustion of administrative remedies. Even in this, however, her cause must fail. We find nothing illegal or unconstitutional about her transfer.

          4. Dissentient, plaintiff insists that her unconsented transfer is a demotion in rank and therefore disciplinary. In which case, so she argues, the transfer cannot be made without any previous investigation. She thumbs with meticulous care the difference between Peñarrubia Elementary School to which she was transferred and Sinalang Elementary School which she occupied. The first is not a pilot demonstration school. It is six kilometers from her hometown and has only thirteen teachers. On the other hand, the latter, being a pilot school located in her hometown receives funds from the ICA-NEC and is already staffed with twenty-three teachers.

          Indeed, the WAPCO Classification Pay Plan 19 categorizes principals into Principal I and Principal II. Principal I has a staff of seven to twenty-five teachers. Principal II has a faculty of more than twenty-five teachers. Transfers must be made in accord with this classification. 20 A principal I may not be transferred to a school having more than twenty-five teachers. In turn, a principal II may not be transferred to a school with a faculty of twenty-five or less teachers. In the same manner, transfers must be made within the same salary range. When, however, the number of teachers in a particular school, which previously had only twenty-five or less teachers, increases to more than twenty-five, the Division Superintendent of Schools should make a recommendation to effect a reclassification of the principal assigned to that school to Principal II. 21

          It is on this last point that plaintiff anchors her complaint. That just as she had almost reached the required number of teachers under her staff to enable her reclassification to Principal II, she was transferred to Peñarrubia Elementary School with only thirteen teachers. This, according to her, delays her promotion to Principal II. It is, she stresses, a demotion in rank, disciplinary in character.

          But, again, this claim must be brushed aside. It is, at best, speculative. Who can say whether Sinalang will soon or will eventually have more than seventy-five teachers? The point is

that plaintiff is a Principal I. Peñarrubia Elementary School, with its thirteen teachers, belongs to the Principal I classification. Plaintiff's transfer therefore did not reduce her rank of Principal I.

          Nor does it delay her promotion. Promotion or demotion is from the rank of Principal I to that of Principal II and vice-versa. If her transfer is a demotion prestige-wise, it should not be allowed to hamper the demands of public service. Plaintiff is a principal of a pilot school. Her experience as such is needed in other schools. Public service would not be enhanced if she were allowed to stay permanently in Sinalang Elementary School.

          The fact, too, that her former station is a pilot demonstration school does not give plaintiff a higher rank than Principal I. The conversion of the Sinalang Elementary School to a pilot school involves no promotion in rank. A principal of an ordinary school and that of a pilot school have the same qualifications. 22

          We find no reason to disturb the lower court's statements on this point, viz:

          As to plaintiff's allegation that her chance of promotion to Principal II is remote inasmuch as in Sinalang Pilot Elementary School there are 23 teachers while in Peñarrubia Elementary School there are only 13 teachers is not only denied by the defendant, but Circular No. 22, Series of 1960, of the Bureau of Public Schools dated July 20, 1960, entitled "Merit and Seniority Ranking System", Exhibit "6" (Roll of Exhibits), shows that in the selection of personnel for promotion to higher positions several items should be considered in preparing the rank list of elementary school principals, such as (a) educational qualifications, (b) civil service eligibility, (c) efficiency, (d) experience and (e) educational leadership and executive ability, so that the number of teachers under the supervision of the candidate is not a factor to be considered. Moreover, G.L. No. 77 dated June 1, 1959, of the Director of Public Schools, Exhibit "11" (Roll of Exhibits), states that "... Elementary school principals in schools with 25 or more teachers are classified as Elementary School Principal II and those assigned in school with less than 25 teachers (sic) are classified as Elementary School Principal I". 23

So that it is immaterial whether plaintiff as Elementary School Principal I should have 13 or 23 teachers under her. Consequently, plaintiff's transfer to Peñarrubia Elementary School does not in any way affect her rank as Elementary School Principal I. It is further contended by plaintiff that her transfer in question was a demotion because it was not only motivated by personal reasons, on account of a misunderstanding with the herein defendant, but also because her choice of station was disregarded, ... result of which would work hardship to her family, hence, defendant's act was illegal and arbitrary... this contention defendant vehemently denied, for if that were true, he could have ordered plaintiff's transfer to a school farther away from her home than Peñarrubia. Aside from this, however, the evidence shows that she was not the only one who was transferred to another station but also all the other elementary school principals, whose respective assignments were made for public interest. The fact is also clear that her transfer to Peñarrubia Elementary School does not affect her promotion rank and salary. This fact is corroborated by the Certificate of the Record Clerk of the Division of Abra dated July 31, 1963 to the effect that as Principal I for the year 1963-64, she will receive an annual salary, based on WAPCO Pay Plan, the amount of P3,432.00, instead of her present

salary of P3,264.00 (Exh. "5", Roll of Exhibits). In other words, there is no demotion to speak of, since there is no reduction in her position, rank, or salary as a result of such transfer. There being no reduction in position, rank, or salary, this Court is of the opinion that the act of the defendant in transferring the plaintiff is not disciplinary in nature. 24

          5. Surely, the argument that defendant acted arbitrarily because there was no complaint filed against plaintiff as Principal of Sinalang Elementary School and that therefore her transfer was not required by the exigency of public service is a narrow concept of the meaning of public service. The reason put forth by defendant that her efficiency and her experience as Principal in a pilot school would spur the improvement of small schools is enough to justify her transfer. 25 It is in the interest of public service. 26 Her know how may be utilized more effectively in Peñarrubia Elementary School. 27

          6. In a case like the present, where appeal is pending resolution in the Supreme Court, school authorities should be cautious in charging — before the Civil Service Commission — a school teacher with insubordination for failure to comply with their directive, subject of appeal in an appellate court and which was not stopped by injunction. While the interest of the service may be urged in enforcing such directive, factors there are which should outweigh the exercise thereof whilst the court case remains unresolved.

          First, plaintiff acted in good faith believing that her refusal to obey the transfer was legally defensible. She felt that a wrong had been committed against her. Her transfer — from her post as principal teacher in a pilot elementary school with 23 teachers in the provincial capital, Bangued, her place of residence — meant inconvenience as well as loss of prestige. For, she was to be transferred to a small town with but only 13 teachers. In this situation, it is not so easy to erase from her mind the thinking that transfer took the form of disciplinary action, even if, as later found, some such thoughts were misconceived. She went to court for redress. She had faith in the administration of justice. She entertained the belief that to bow to the demands of her superiors pending her appeal would jeopardize such appeal. This is, of course, a mistake. But again, it is quite understandable.

          And then, public officials should not give cause for suspicion on the part of their subordinates that persecution has taken the better part of discretion. At the time the transfer here involved took place, the superintendent's authority to transfer in the interest of the service could easily be abused. It would seem to us, on the face of subsequent events, that such practice could have really generated low morale amongst the teachers. That power was, in fact, reduced when Circular 18, series of 1964 — while this case was pending appeal — was promulgated by the Director of Public Schools. That circular exacted approval by the Director of Public Schools, prior to implementation, of any transfer plan to be made by the Division Superintendent. 28 Then came the Magna Carta for Public School Teachers, Republic Act 4670, approved on June 18, 1966. A teacher may not now "be transferred without his consent from one station to another" except "for cause and as herein otherwise provided". The Magna Carta enjoins that "[w]here the exigencies of the service require the transfer of a teacher from one station to another, such transfer may be effected by the school superintendent who shall previously notify the teacher concerned of the transfer and the reason or reasons therefor." If the teacher believes there is "no justification for the transfer", he may appeal his case to the Director of Public Schools or to the

Director of Vocational Education, as the case may be. And, pending his appeal and the decision thereon, "his transfer shall be held in abeyance". 29

          On top of all these is that implementation of the power to transfer, pending appeal in the appellate courts, may bring about an undesirable conflict of opinion. Suppose by reason of an insubordination charge, a teacher is dismissed? And then thereafter on appeal the Court pronounces judgment in favor of the teacher? In this particular situation, it is, indeed, dangerous to allow the Commissioner of Civil Service to dip his hand into a question that still awaits final resolution by courts of justice.

          So it is, that this Court is duty-bound to nullify the decision and resolution of the Commissioner of Civil Service first dismissing plaintiff and thereafter reducing her penalty to 10 months' suspension without pay.lawphi1.nêt

          7. Finally, there is no point in ordering the Commissioner of Civil Service to show cause why he should not be punished for contempt for finding plaintiff guilty of insubordination pending her appeal before this Court. The Commissioner's decision and resolution aforesaid came as a result of an administrative charge. Defendant had not previously applied to this Court to inhibit the Commissioner from trying the administrative charge pending appeal. As aforesaid, there was no injunction. There was then no court order, violation of which could have given cause for contempt.

          For the reasons given, the decision of the Court of First Instance of Abra in Civil Case No. 359 appealed from is affirmed; however, the June 23, 1965 decision of the Commissioner of Civil Service administratively sentencing herein plaintiff-appellant Juliana B. Brillantes to ten (10) months' suspension from service without pay, is hereby declared null and void.

          No costs allowed. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur.

Footnotes

1R.A., p. 72.

2Exhibit 6.

3Exhibits A and 2; emphasis supplied.

4Exhibit I.

5Exhibit M.

6Exhibit 4.

7Exhibit K.

8Civil Case 359, Court of First Instance of Abra, entitled "Juliana B. Brillantes, Plaintiff, versus Mariano R. Guevarra, Defendant," for "Declaration of Nullity, Injunction and Damages." .

9Paragraph (a) (3) of Section 318 of the Service Manual (Third Revision, 1959) provides that "[t] transfers of elementary school principals ... may be made by the division superintendent, but in each case a report of the transfer or change in assignment should be submitted to the Director of Public Schools immediately." Exhibit 8.

10Rollo, p. 48.

11Rollo, p. 59.

12Rollo, p. 62.

13Rollo, p. 71.

14Sec. 4, Art. XII, Constitution: "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law."

15Emphasis supplied.

16Miclat vs. Ganaden, L-14459, May 30, 1960; Jaro vs. Valencia, L-18352, August 30, 1963.

171967B Phild. 257, 264, L-26558, April 27, 1967. Also cited in: Suarez vs. Commission on Elections, 1967C Phild. 167, 170; Co vs. Commission on Elections, 1967C Phild. 133, 135; Salazar vs. Commission on Elections, 1967C Phild 136, 138; Real vs. Commission on Elections, 1967C Phild. 899, 901; Braganza vs. Commission on Elections, 1967C Phild. 359, 361; and Amponin vs. Commission on Elections, 1967C Phild. 903, 904.

18Exhibit 4.

19Of February 1, 1956, Exhibit 10.

20General Letter 77 of the Director of Public Schools, June 1, 1959, Exhibit 11.

21Id.

22Tr., August 1, 1963 (Millare), pp. 78-79.

23Under the WAPCO Classification Pay Plan of February 1956 aforesaid — Exhibit 10 — principals of elementary schools with a faculty of more than twenty-five teachers" are

classified as "Elementary School Principal II" and those in schools "with staff of seven to twenty-five teachers" as "Elementary School principal I".

24R.A., pp. 49-51; Emphasis supplied.

25Tr., August 1, 1963 (Millare), p.87.

26Sec. 32, Civil Service Law, R.A. 2260.

27Miclat vs. Ganaden, supra; Jaro vs. Valencia, supra.

28Rollo, pp. 59-60.

29Section 6, Magna Carta for Public School Teachers.

Republic of the Philippines

Supreme Court

Manila

 

EN BANC

 

 

 

REPUBLIC OF THE PHILIPPINES, represented by the CIVIL SERVICE COMMISSION,

Petitioner,

 

 

 

 

  G.R. No. 178021

 

Present:

 

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

 

 

 

- versus -

 

 

 

 

 

 

 

 

MINERVA M.P. PACHEO,

Respondent.

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,

SERENO,

REYES, and

PERLAS-BERNABE, JJ.

 

 

Promulgated:

January 25, 2012

 

x -------------------------------------------------------------------------------------------------------x

 

D E C I S I O N

 

 

MENDOZA, J.:

 

 

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of

Court filed by petitioner Republic of the Philippines, represented by the Office of the Solicitor

General (OSG), which assails the February 22, 2007 Decision1[1] and the May 15, 2007

Resolution2[2] of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA reversed the

November 21, 2005 Resolution of the Civil Service Commission (CSC) declaring the re-

assignment of respondent Minerva M.P. Pacheos (Pacheo) not valid and ordering her

reinstatement to her original station but without backwages under the principle of “no work, no

pay.”

 

The Facts

 

Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau

of Internal Revenue (BIR) in Revenue Region No. 7 (RR7), Quezon City.

 

On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No.

25-2002,3[3] ordering the reassignment of Pacheo as Assistant Chief, Legal Division from RR7

in Quezon City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the revenue

service as basis for the issuance of the said RTAO.

1[1] Rollo, pp. 59-70. Penned by Associate Justice Magdangal M. De Leon with Associate Justice Rebecca De Guia-Salvador and Associate Justice Ricardo R. Rosario, concurring.

2[2] Id. at 72-73.

3[3] Id. at 118.

 

Pacheo questioned the reassignment through her Letter dated May 9, 20024[4]

addressed to Rene G. Banez, then Commissioner of Internal Revenue (CIR). She complained that

the transfer would mean economic dislocation since she would have to spend ₱200.00 on daily

travel expenses or approximately ₱4,000.00 a month. It would also mean physical burden on her

part as she would be compelled to wake up early in the morning for her daily travel from Quezon

City to San Fernando, Pampanga, and to return home late at night from San Fernando, Pampanga

to Quezon City. She was of the view that that her reassignment was merely intended to harass

and force her out of the BIR in the guise of exigencies of the revenue service. In sum, she

considered her transfer from Quezon City to Pampanga as amounting to a constructive dismissal.

 

Due to the then inaction of the BIR, Pacheo filed a complaint5[5] dated May 30,

2002, before the CSC- National Capital Region (CSC-NCR), praying for the nullification of

RTAO No. 25-2002. In its July 22, 2002 Order,6[6] the CSC-NCR treated Pacheo’s Complaint

as an appeal and dismissed the same, without prejudice, for failure to comply with Sections 73

and 74 of Rule V(b) of the Uniform Rules on Administrative Cases in the Civil Service.7[7]

4[4] Id. at 119-121.

5[5] Id. at 122.

6[6] Id. at 123-124.

7[7] Section 73. Requirement of Filing. – The appellant shall furnish a copy of his appeal to the head of department or agency concerned who shall submit his comment, together with the records, to the Commission within ten (10) days from receipt thereof. Proof of service of the appeal on the head of department or agency shall be submitted with the Commission.

Section 74. Grounds for Dismissal. – An appeal involving non-disciplinary cases shall be dismissed on any of the following grounds:

a.        The appeal is filed beyond the reglementary period;

b.       The filing fee of Three Hundred (₱300.00) has not been paid, or

 

In its Letter-reply8[8] dated September 13, 2002, the BIR, through its Deputy

Commissioner for Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied

Pacheo’s protest for lack of merit. It contended that her reassignment could not be considered

constructive dismissal as she maintained her position as Revenue Attorney IV and was

designated as Assistant Chief of Legal Division. It emphasized that her appointment to the

position of Revenue Attorney IV was without a specific station. Consequently, she could

properly be reassigned from one organizational unit to another within the BIR. Lastly, she could

not validly claim a vested right to any specific station, or a violation of her right to security of

tenure.

 

Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.

 

On November 21, 2005, the CSC issued Resolution No. 0516979[9] granting Pacheo’s

appeal, the dispositive portion of which reads:

 

WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby GRANTED. The Bureau of Internal Revenue Revenue Travel Assignment Order No. 25-2002 dated May 7, 2002, on the reassignment of Pacheo to the Legal Division Revenue Region No. 4 San Fernanado, Pampanga, is hereby declared NOT VALID. ACCORDINGLY, Pacheo should now be recalled to her original station. This Commission, however rules and so holds that the withholding by the BIR of Pacheo’s salary for the period she did not report to work is justified.

c.        The appeal does not contain a certification on non-forum shopping.

8[8] Rollo, pp. 125.

9[9] Id. at 148-155.

 The CSCRO No. III is directed to monitor the

implementation of this Resolution.

 

In granting Pacheo’s appeal, the CSC explained:

 

On the second issue, this Commission finds merit in appellant’s contention that her reassignment in not valid.

 Of pertinent application thereto is Rule III, Section 6 of CSC

Memorandum Circular No. 40, series of 1998, dated December 14, 1998, which provides:

 Section 6. Other Personnel Movements. The

following personnel movements which will not require issuance of an appointment shall nevertheless require an office order by duly authorized official.

 a. Reassignment – Movement of an

employee from one organizational unit to another in the same department or agency which does not involve reduction in rank, status or salary. If reassignment is done without consent of the employee being reassigned it shall be allowed for a maximum period of one year. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or it constitutes constructive dismissal.

 No assignment shall be undertaken if done

indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/ disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest.

 Reassignment of small salaried employee is

not permissible if it causes significant financial dislocation.’

 Although reassignment is a management prerogative, the

same must be done in the exigency of the service without diminution in rank, status and salary on the part of the officer or employee being temporarily reassigned. Reassignment of ‘small salaried’ employees, however is not allowed if it will cause significant financial dislocation to the employee reassigned. Otherwise the Commission will have to intervene.

 The primary purpose of emphasizing ‘small salaried

employees’ in the foregoing rule is to protect the ‘rank and file’ employees from possible abuse by the management in the guise of transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51 O.G. 2452) ruled:

 ‘ x x x [T]he protection against invalid transfer

is especially needed by lower ranking employees. The Court emphasized this need when it ruled that officials in the unclassified service, presidential appointees, men in the government set up occupy positions in the higher echelon should be entitled to security of tenure, unquestionable a lesser sol[ci]itude cannot be meant for the little men, that great mass of Common underprivileged employees-thousand there are of them in the lower bracket, who generally are without connections and who pin their hopes of advancement on the merit system instituted by our civil service law.’ In other words, in order to be embraced in the term

‘small-salaried employees’, the latter must belong to the ‘rank and file’; and, his/her salary would be significantly reduced by virtue of the transfer/reassignment. ‘Rank and file’ was categorized as those occupying the position of Division Chief and below, pursuant to CSC Resolution No. 1, series of 1991, dated January 28, 1991.

 The facts established on record show that Pacheo belongs

to the rank and file receiving an average monthly salary of Twenty Thousand Pesos (₱20,000.00) under the salary standardization law and a monthly take home pay of Fourteen Thousand Pesos (₱14,000.00). She has to spend around Four Thousand Pesos (₱4,000.00) a month for her transportation expenses as a consequence of her reassignment, roughly twenty eight percent (28%) of her monthly take home pay. Clearly,

Pacheo’s salary shall be significantly reduced as a result of her reassignment.

   

 

 

 

In ANORE, Ma. Theresa F., this Commission ruled: 

‘Anore, a lowly salaried employee, was reassigned to an isolated island 15 kilometers away from her original place of assignment. She has to travel by boat with only one trip a day to report to her new place of assignment in an office without any facilities, except its bare structure. Worst, the municipality did not provide her with transportation allowance. She was forced to be separated from her family, look for a boarding house where she can stay while in the island and spend for her board and lodging. The circumstances surrounding Anore’s reassignment is exactly the kind of reassignment that is being frowned upon by law.’ This Commission, however, rules and so holds that the

withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay.

 Accordingly, Pacheo should now be reinstated to her

original station without any right to claim back salary as she did not report to work either at her new place of assignment or at her original station.10[10] [Emphases in the original]

 

10[10] Id. at 79-81.

Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in

not finding that she was constructively dismissed and, therefore, entitled to back salary.

 

On March 7, 2006, the CSC issued Resolution No. 06039711[11] denying Pacheo’s

motion for reconsideration.

 

Undaunted, Pacheo sought recourse before the CA via a petition for review.

 

In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in

favor of Pacheo, the fallo of which states:

 WHEREFORE, the petition is GRANTED. Resolution nos.

051697 and 060397 dated November 21, 2005 and March 7, 2006, respectively, of the Civil Service Commission are REVERSED and SET ASIDE. A new judgment is hereby entered finding petitioner to have been constructively dismissed and ordering her immediate reinstatement with full backwages and benefits.

 SO ORDERED.12[12]

In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:

 

11[11] Id. at 82-85.

12[12] Id. at 69.

While this Court agrees that petitioner’s reassignment was not valid considering that a diminution in salary is enough to invalidate such reassignment, We cannot agree that the latter has not been constructively dismissed as a result thereof. 

It is well to remember that constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefits and privileges. For an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forgo his continued employment. 

The management prerogative to transfer personnel must be exercised without grave abuse of discretion and putting to mind the basic elements of justice and fair play. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee. 

In this case, petitioner’s reassignment will result in the reduction of her salary, not to mention the physical burden that she would suffer in waking up early in the morning to travel daily from Quezon City to San Fernando, Pampanga and in coming home late at night. 

Clearly, the insensibility of the employer is deducible from the foregoing circumstances and petitioner may have no other choice but to forego her continued employment. 

Moreover, it would be inconsistent to hold that the reassignment was not valid due to the significant reduction in petitioner’s salary and then rule that there is no constructive dismissal just because said reduction in salary will not render petitioner penniless if she will report to her new place of assignment. It must be noted that there is constructive dismissal when the reassignment of an employee involves a diminution in pay.

 

  Having determined that petitioner has been constructively

dismissed as a result of her reassignment, We shall resolve whether or not she is entitled to backwages. 

In denying petitioner’s claim for backwages, the CSC held: 

This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay. 

Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report for work either at her new place of assignment or at her original station.” 

Pacheo, while belonging to the rank-and-file employees, is holding a responsible position as an Assistant Division Chief, who could not just abandon her duties merely because she protested her re-assignment and filed an appeal afterwards.

  We do not agree. 

If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. The “No work, no pay” principle contemplates a “no work” situation where the employees voluntarily absent themselves.

 In this case, petitioner was forced to forego her continued

employment and did not just abandon her duties. In fact, she lost no time in protesting her reassignment as a form of constructive dismissal. It is settled that the filing of a complaint for illegal dismissal is inconsistent with a charge of abandonment. The filing of the complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment.

 Neither do we agree with the OSG when it opined that: 

No one in the Civil Service should be allowed to decide on whether she is going to accept or not any work dictated upon by the exigency of the service. One should consider that public office is a public trust and that the act of respondent CIR

enjoys the presumption of regularity. To uphold the failure of respondent to heed the RTAO would result in chaos. Every employee would put his or her vested interest or personal opinion over and above the smooth functioning of the bureaucracy.

  

Security of tenure is a right of paramount value as recognized and guaranteed under Sec. 3, Art. XIII of the 1987 Constitution. 

The State shall afford full protection to labor, xxx and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to xxx security of tenure xxx

  

Such constitutional right should not be denied on mere speculation of any similar unclear and nebulous basis.

In Garcia, et al. v. Lejano, et al., the Supreme Court

rejected the OSG’s opinion that when the transfer is motivated solely by the interest of the service of such act cannot be considered violative of the Constitution, thus:

 “We do not agree to this view. While

temporary transfers or assignments may be made of the personnel of a bureau or department without first obtaining the consent of the employee concerned within the scope of Section 79 (D) of the Administrative Code which party provides that ‘The Department Head also may, from time to time, in the interest of the service, change the distribution among the several Bureaus and offices of his Department of the employees or subordinates authorized by law,’ such cannot be undertaken when the transfer of the employee is with a view to his removal. Such cannot be done without the consent of the employee. And if the transfer is resorted to as a scheme to lure the employee away from his permanent position, such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service. It is not without

reason that this Court made the following observation:  To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free and efficient Government force, possessed of self-respect and reasonable ambition.”

Clearly, the principle of “no work, no pay” does not apply in this case. As held in Neeland v. Villanueva, Jr:

 

“We also cannot deny back salaries and other economic benefits on the ground that respondent Clerk of Court did not work. For the principle of “no work, no pay” does not apply when the employee himself was forced out of job. Xxx Indeed, it is not always true that back salaries are paid only when work is done. Xxx For another, the poor employee could offer no work since he was forced out of work. Thus, to always require complete exoneration or performance of work would ultimately leave the dismissal uncompensated no matter how grossly disproportionate the penalty was. Clearly, it does not serve justice to simply restore the dismissed employee to his position and deny him his claim for back salaries and other economic benefits on these grounds. We would otherwise be serving justice in halves.”

 

An illegally dismissed government employee who is later ordered reinstated is entitled to back wages and other monetary

benefits from the time of his illegal dismissal up to his reinstatement. This is only fair and sensible because an employee who is reinstated after having been illegally dismissed is considered as not having left his office and should be given a comparable compensation at the time of his reinstatement.

 

When a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held.13[13]

 

The CSC moved for reconsideration but its motion was denied by the CA in its May 15,

2007 Resolution.

 

Hence, this petition.

  

 

THE ISSUES

 

WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENT’S REFUSAL TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807. WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY IN RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR No. 40, SERIES OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER REASSIGNMENT FROM BIR RR

13[13] Citations omitted, id. at 64-69.

No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO, PAMPANGA.14[14] 

In her Memorandum,15[15] Pacheo asserts that RTAO No. 25-2002, on the pretense of

the exigencies of the revenue service, was solely meant to harass her and force her to resign. As a

result of her invalid reassignment, she was constructively dismissed and, therefore, entitled to her

back salaries and monetary benefits from the time of her illegal dismissal up to her reinstatement.

 

In its own Memorandum,16[16] the CSC, through the OSG, argues that constructive

dismissal is not applicable in this case because it was Pacheo herself who adamantly refused to

report for work either in her original station or new place of assignment in clear violation of

Section 24 (f) of Presidential Decree (PD) No. 807.17[17] Citing jurisprudence,18[18] the CSC

avers that the RTAO is immediately executory, unless otherwise ordered by the CSC. Therefore,

Pacheo should have first reported to her new place of assignment and then appealed her case to

the CSC if she indeed believed that there was no justification for her reassignment. Since Pacheo

did not report for work at all, she is not entitled to backwages following the principle of “no

work, no pay.”

 

THE COURT’S RULING

 

14[14] Id. at 45-46.

15

16

17

18

The petition fails to persuade.

 

It appears undisputed that the reassignment of Pacheo was not valid. In its

memorandum, the OSG initially argues for the validity of RTAO No. 25-2002

authorizing Pacheo’s reassignment from Quezon City to San Fernando, Pampanga.

Later, however, it specifically prays for the reinstatement of CSC Resolution Nos.

051697 and 060397, which categorically declared RTAO No. 25-2002 as not valid.

In seeking such relief, the OSG has effectively accepted the finding of the CSC, as

affirmed by the CA, that Pacheo’s reassignment was indeed invalid. Since the issue

of Pacheo’s reassignment is already settled, the Court finds it futile to pass upon

the same at this point.

 

The question that remains to be resolved is whether or not Pacheo’s

assignment constitutes constructive dismissal and, thus, entitling her to

reinstatement and backwages. Was Pacheo constructively dismissed by reason of

her reassignment?

 

The Court agrees with the CA on this point.

 

While a temporary transfer or assignment of personnel is permissible even

without the employee's prior consent, it cannot be done when the transfer is a

preliminary step toward his removal, or a scheme to lure him away from his

permanent position, or when it is designed to indirectly terminate his service, or

force his resignation. Such a transfer would in effect circumvent the provision

which safeguards the tenure of office of those who are in the Civil Service.19[19]

Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40,

series of 1998, defines constructive dismissal as a situation when an employee

quits his work because of the agency head’s unreasonable, humiliating, or

demeaning actuations which render continued work impossible. Hence, the

employee is deemed to have been illegally dismissed. This may occur although

there is no diminution or reduction of salary of the employee. It may be a transfer

from one position of dignity to a more servile or menial job.

 

The CSC, through the OSG, contends that the deliberate refusal of Pacheo to

report for work either in her original station in Quezon City or her new place of

assignment in San Fernando, Pampanga negates her claim of constructive dismissal

in the present case being in violation of Section 24 (f) of P.D. 807 [now Executive

Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6)].20[20] It

further argues that the subject RTAO was immediately executory, unless otherwise

ordered by the CSC. It was, therefore, incumbent on Pacheo to have reported to her

new place of assignment and then appealed her case to the CSC if she indeed

believed that there was no justification for her reassignment.

 

 

Anent the first argument of CSC, the Court cannot sustain the proposition. It

was legally impossible for Pacheo to report to her original place of assignment in

19

20

Quezon City considering that the subject RTAO No. 25-2002 also reassigned

Amado Rey B. Pagarigan (Pagarigan) as Assistant Chief, Legal Division, from

RR4, San Fernando, Pampanga to RR7, Quezon City, the very same position

Pacheo formerly held. The reassignment of Pagarigan to the same position

palpably created an impediment to Pacheo’s return to her original station.

 

The Court finds Itself unable to agree to CSC’s argument that the subject

RTAO was immediately executory. The Court deems it necessary to distinguish

between a detail and reassignment, as they are governed by different rules.

 

A detail is defined and governed by Executive Order 292, Book V, Title 1,

Subtitle A, Chapter 5, Section 26 (6), thus:

(6) Detail. A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. [Underscoring supplied]

 

On the other hand, a reassignment is defined and governed by E.O. 292,

Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7), thus:

(7) Reassignment.—An employee may be reassigned from one organizational unit to another in the same agency; Provided, That such reassignment shall not involve a reduction in rank, status or salaries. [Underscoring supplied]

 

 

The principal distinctions between a detail and reassignment lie in the place

where the employee is to be moved and in its effectivity pending appeal with the

CSC. Based on the definition, a detail requires a movement from one agency to

another while a reassignment requires a movement within the same agency.

Moreover, pending appeal with the CSC, an order to detail is immediately

executory, whereas a reassignment order does not become immediately effective.

 

In the case at bench, the lateral movement of Pacheo as Assistant Chief,

Legal Division from Quezon City to San Fernando, Pampanga within the same

agency is undeniably a reassignment. The OSG posits that she should have first

reported to her new place of assignment and then subsequently question her

reassignment. It is clear, however, from E.O. 292, Book V, Title 1, Subtitle A,

Chapter 5, Section 26 (7) that there is no such duty to first report to the new place

of assignment prior to questioning an alleged invalid reassignment imposed upon

an employee. Pacheo was well within her right not to report immediately to RR4,

San Fernando, Pampanga, and to question her reassignment.

Reassignments involving a reduction in rank, status or salary violate an

employee’s security of tenure, which is assured by the Constitution, the

Administrative Code of 1987, and the Omnibus Civil Service Rules and

Regulations. Security of tenure covers not only employees removed without cause,

but also cases of unconsented transfers and reassignments, which are tantamount to

illegal/constructive removal.21[21]

 

21

The Court is not unaware that the BIR is authorized to assign or reassign

internal revenue officers and employees as the exigencies of service may require.

This authority of the BIR, however, should be prudently exercised in accordance

with existing civil service rules.

 

Having ruled that Pacheo was constructively dismissed, is she entitled to

reinstatement and back wages? The Court agrees with the CA that she is entitled to

reinstatement, but finds Itself unable to sustain the ruling that she is entitled to full

back wages and benefits. It is a settled jurisprudence22[22] that an illegally

dismissed civil service employee is entitled to back salaries but limited only to a

maximum period of five (5) years, and not full back salaries from his illegal

dismissal up to his reinstatement.

 

WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and

May 15, 2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are hereby

AFFIRMED with MODIFICATION that respondent Minerva M.P. Pacheo is hereby ordered

reinstated without loss of seniority rights but is only entitled to the payment of back salaries

corresponding to five (5) years from the date of her invalid reassignment on May 7, 2002.

 

SO ORDERED.

 

 

 

22

 

 

JOSE CATRAL MENDOZA

Associate Justice

 

 

 

WE CONCUR:

 

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

  

 

 

 

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRIONAssociate Justice Associate Justice

    

 DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice 

   

(On Leave)MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice 

    

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZAssociate Justice Associate Justice

 

 

 

 

 

 

(On Leave)

MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES

Associate Justice Associate Justice

 

 

 

 

 

ESTELA M. PERLAS-BERNABE

Associate Justice

 

 

C E R T I F I C A T I O N

 

 

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

 

 

 

 

MVM/KPZ/Y9/w39

Garcia/vog

D 00-0516