Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14908 February 28, 1964
SINFORIANO V. URGELIO, JOSE V. ENCABO, and JORGE M. VILLARIN, petitioners,
JOSE V. ENCABO and JORGE M. VILLARIN, petitioners-appellants,
vs.
SERGIO OSMEÑA, JR., THE MUNICIPAL BOARD OF CEBU CITY,
THE CITY OF CEBU, RAMON DUTERTE, CASIMERO V. MADARANG, CARLOS J. GUIZON,
OSMUNDO G. RAMA, FLORENCIO S. UROT, CEFERINA U. DEL ROSARIO,
GENEROSO JACA, CECILIO DE LA VICTORIA, JOAQUIN L. PANIS, PEDRO B. CLAVANO,
THE CITY TREASURER, and THE CITY AUDITOR OF CEBU CITY, respondents-appellees.
R E S O L U T I O N
MAKALINTAL, J.:
Respondents move for reconsideration of the Court's decision of October 31, 1963 ordering respondent City of Cebu to reinstate petitioners to their positions and to pay them back salaries since the date of their separation, less whatever they have earned from other employment in the interim, to be determined upon proper hearing before the court of origin.
Respondents claim that petitioners should not be reinstated to their former positions, first, because they are not civil service eligibles; and, second, because they are deemed to have acquired to the termination of their services.
As has been stated in the decision, petitioners, though not civil service eligibles, were members of the Government Service Insurance System, which fact shows the permanent character of their tenure it does not appear that their appointments were temporary; indeed, their separation was not based on that ground but on the abolition of their positions, carried out in bad faith and solely for the purpose of removing them.1äwphï1.ñët
Contrary to respondents' theory, the fact that petitioner received their terminal pay cannot be considered as a waiver of their right to question the termination of their services. The case of Magana v. Agregado (58 O.G. No. 4, p. 654), relied upon by movants, is not here applicable. The ruling in said case, adopting that laid down in Lopes v. Namarco,
L-8907, April 30, 1957, is that the employee was estopped to question the validity of the resolution abolishing his position because he had previously accepted the gratuity provided for in the same resolution. But no such estoppel obtains in this case, as there was no gratuity provided for in the resolution which petitioners here received or could have received.
Respondents also question petitioner's right to back salaries on the strength of Section 5 of the Charter of the City of Cebu, C.A. No. 58, as amended. The said provision does not apply in this case, because the obligation of the City of Cebu to pay petitioners' back salaries is not a liability "for damages or injuries to person or property arising from the failure of the Mayor, the Vice Mayor, the Municipal Board, or any other city officer, to enforce the provisions of the Charter, or any other law or ordinance or from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions."
The case of Faunillan v. Del Rosario, L-9447, August 23, 1956, is cited by petitioners. But in a number of other cases, involving also employees of the City of Cebu, this Court has invariably granted back salaries to illegal dismissed employees. In three cases prior to the Faunillan case (Mission v. Del Rosario [Feb. 26, 1954], 50 O.G. No. 4, p. 1571; Abella v. Rodriguez [June 29, 1954], 5 O.G. No. 7, p. 5039; Uy v. Rodriguez [July 30, 1954] 50 O.G. No. 8, p. 3574), the City of Cebu was ordered pay arrears in salary to detectives of the city police department who had been illegally separated from the service. And in two instances subsequent to that of Faunillan (Gacho v. Osmeña, L-10989, May 28, 1958; and Briones Reyes, L-12536, September 24, 1958), the same city was required to reinstate, with back salaries, employees whose positions had been wrongfully abolished.
WHEREFORE, the motion for reconsideration is her denied.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Barrera, Paredes, Dizon and Regala, JJ., concur.
Reyes, J.B.L., J., reserves his vote.
The Lawphil Project - Arellano Law Foundation
