G.R. No. 131392 - Separate Opinion

City Government of Makati v. Comelec, G.R. No. 131392, 6 February 2002
♦ Decision, Bellosillo [J]
♦ Separate Opinion, Vitug [J]
♦ Separate Concurring Opinion, Kapunan [J]
♦ Dissenting Opinion, Panganinban [J]

CITY GOVERNMENT OF MAKATI CITY represented herein by JEJOMAR C. BINAY in his capacity as Mayor of Makati City, Petitioner,
vs.
CIVIL SERVICE COMMISSION and EUSEBIA R. GALZOTE, Respondents.

I concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in finding for private respondent Eusebia R. Galzote; however, I would limit the award of back salaries to five years conformably with the pronouncement of this court in a long line of cases (Cristobal vs. Melchor, 78 SCRA 175; Gementiza vs. CA, 113 SCRA 477; Ginzon vs. Municipality of Murcia, 158 SCRA 1; Laganapan vs. Asedillo, 154 SCRA 377; San Luis vs. CA, 174 SCRA 258; Tan, Jr. vs. Office of the President, 229 SCRA 677; Bangalisan vs. Court of Appeals, 276 SCRA 619; Jacinto vs. Court of Appeals, 281 SCRA 657; Gloria vs. Court of Appeals, 306 SCRA 287; and Caniete vs. Secretary of Education, Culture and Sports, 333 SCRA 849, as opposed to Garcia vs. Chairman, Commission on Audit, 226 SCRA 356).

I join Justice Bellosillo in his well-crafted and logically compelling ponencia. It is a consecrated legal axiom that the reason of the law is the life of the law. Ratio legis est anima, which means the reason of the law is its soul.1 The reason of a law may cease in a given situation. This may happen when the purpose of the law sought to be achieved is accomplished, or the mischief sought to be repressed is prevented, by an act or event independent of the statute itself. The law, in such a case, though remaining in force and effect, finds no application in the given situation.2 This truism hold true in the case at bar.

Petitioner assails the decision of the Court of Appeals affirming that of the Civil Service Commission which directed petitioner to reinstate private respondent. Petitioner maintains that the dismissal of private respondent was justified as it insists on the strict application of the civil service rules on Absence Without Official Leave (AWOL):

Sec. 15. Applications for vacation leave of absence for one full day or more shall be submitted on the prescribed form for action by the proper chief agency in advance, whenever possible, of the effective date of such leave.

Sec. 20. Leave of absence for any reason other than illness of an officer or employee or of any member of his family must be contingent upon the need of the service. Hence, the grant of vacation leave shall be at the discretion of the head of department/agency.

Sec. 21. Any violation of the leave laws, rules or regulations, or any misrepresentation or deception in connection with an application for leave, shall be a ground for disciplinary action.

Sec. 35. Officers and employees who are absent for at least thirty (30) days without approved leave are considered on Absence Without Leave (AWOL) and shall be dropped from the service after due notice. However, when the exigencies of the service require the immediate presence and he fails/refuses to return to the service, the head of office may drop him for the service even prior to the expiration of the 30-day period abovestated.3

Invoking Sections 20 and 35 quoted above, petitioner argues that any absence without leave, for whatever cause or reason, is a ground for dropping of the officer or employee from the service.

Petitioner’s contention is untenable. The requirement for leave application contemplated in Sections 20 and 35 cannot apply to extraordinary or abnormal situations such as the one private respondent was confronted with. Private respondent’s failure to apply for leave was not because of her "whim," "defiance" or "impertinence," as petitioner put it, but due to circumstances beyond her control. Her absence from work was clearly involuntary. It is undisputed that she was incarcerated and was not allowed to post bail. The criminal charge against her, kidnapping with serious physical injuries, was grave and carried with it the capital penalty of reclusion perpetua to death. Her life and liberty were then at stake. During that time, private respondent could not obviously be expected to think of the formality of filing an application for leave, which would have been absurd if she did in the first place! In the situation she was in, she was not in the position to apply for leave of absence, nor for her superiors to grant it.

These were the circumstances that were taken into account by the CSC when it held that private respondent cannot be considered on AWOL as she was considered on "automatic" leave of absence. The CSC recognized that the policy on absence without leave is not a hard and fast rule and admits of some exceptions such as the case of private respondent. Accordingly, the CSC found in favor of private respondent as it cited its previous ruling in a case involving substantially similar facts:

In a similar case (Cenon A. Vargas, CSC Resolution Nos. 94-2795; 95-5559), the Commission said:

When Mr. Vargas was in jail, his services were considered automatically suspended. He could not be expected to file his corresponding application for leave of absence, because whether he likes it or not he could not possibly report to work. He is considered on automatic leave of absence for the period of his detention on jail.

Finally, Vargas had been acquitted of the criminal charges leveled against him. Since no separate administrative case was filed against him, there is no basis to separate him from the service.

Based on the abovementioned decision, Galzote is excused from filing her leave of absence because she could not report to work. She is therefore, on automatic leave of absence for the period of her detention there being no evidence to show that Galzote deliberately absented herself from work. Besides, her act of requesting the Municipal Personnel Officer for reinstatement after she was released from jail show the she had no intention to go on AWOL.4

This interpretation of the CSC of the pertinent civil service rules is entitled to great weight and respect.5

Likewise, I agree with the CA that petitioner’s act of suspending private respondent is incongruous to its position that private respondent went on AWOL. As the CA rhetorically asked, "For how can one who is suspended go on leave?"6

Petitioner, tried to downplay this inconsistency by stating that private respondent’s suspension was lifted on December 8, 1991 as indicated in her employment record. It does not appear from the records, however, that private respondent was even informed of the purported lifting of her suspension. Private respondent’s ignorance thereof is evident from her letter-request for reinstatement, dated October 19, 1994, which is quoted below in part:

In view thereof, may I respectfully request that the suspension issued on 9 September 1991 be lifted and that the undersigned be allowed to resume position as Clerk III, in the Department of Engineering and Public Works in this municipality.7

However, petitioner now advances the view that the suspension was erroneous and void as there was then no administrative charge against private respondent. In other words, the suspension was without basis. Hence, according to petitioner, private respondent should have filed an application for leave as she was not excused therefrom under the law. To my mind, this ratiocination is quite unfair. How would private respondent, not being well versed in the fine points of the law, to know that her suspension was invalid? Since she was already under suspension, why would she still file an application for leave for the duration thereof? Her letter to Hon. Jejomar Binay is revealing:

On the second ground cited by Atty. NERY,8 the undersigned, in view of the suspension order, assumed that there is no need on her part to file an application for leave of absence.

It is very illogical on the part of an individual who is suspended from work to file a leave of absence during the duration of the suspension.9

On the other hand, the manner by which she was dropped from the roll violated due process. The fundamental rule of due process requires that a person be accorded notice and an opportunity to be heard.10 These requisites were not observed in private respondent’s case. Private respondent was neither notified of the charge against her nor given the opportunity to present her side.

Even the service of termination, dated January 21, 1993, was defective. The same was served at the home address of private respondent, when petitioner fully knew that at that time private respondent was still in prison. The CA aptly applied our ruling in Gonzales vs. Civil Service Commission11 on this point:

It is the ruling of the respondent Civil Service Commission that the sending of the said notice to the residence of the petitioner constitutes "substantial" compliance with the demands of due process. The ruling would have some allure if the address of petitioner in the United States was not known to the officials of ATI and if his Philippine address was his last known address. But as stressed above, they knew of petitioner’s exact address in the United States and there appears no impediment for them to send the notice in this correct address. Petitioner, be it noted, was not moving from one residence to another, to avoid service of legal notices. They were aware that petitioner was not momentarily staying in his address in Quezon City where he could receive said notice. Under the circumstances, it is grave abuse of discretion for the respondent Commission to hold that there was "substantial" compliance with the notice requirement of the due process. The disputed ruling cuts too deeply on petitioner’s right to continue his employment in the government and unduly dilutes the protection of due process.12

Finally, petitioner’s allegation that private respondent abandoned her position cannot hold water. The rule on abandonment by a public employee is explained in this manner:

Abandonment of the duties of a position is generally regarded as a form of resignation, having all the consequences of a voluntary resignation. The rule is: A position is held upon the implied condition that the employee will diligently and faithfully perform the duties assigned to him. Where it appears that the employee refuses or neglects to perform the duties of his position for so long a period of time and under such circumstances as to reasonably warrant the presumption that he does not desire or intend to perform the duties of his position he will be held to have abandoned it, not only where his refusal to perform was willful but also where, though not intending to vacate the position, he in good faith but mistakenly supposed he had no right to it. While an abandonment of a position by an employee must be total and under such circumstances as to clearly indicate its absolute relinquishment, whether or not a position has been abandoned is dependent on his acts and conduct rather than his declared intention. The law will infer an abandonment where the acts and conduct of the employee indicate that he has completely relinquished the duties of his position.13

In other words, in order to constitute abandonment, it is necessary to show that the incumbent has manifested a clear intention to abandon the office and its duties, although such intention may be inferred from conduct.14 Further, an office cannot be abandoned without the intention by the officer to relinquish the same.15 Private respondent’s absence from work, albeit prolonged, was certainly not due to any intention to relinquish her duties. Rather, as earlier explained, she was wrongfully implicated and imprisoned for a crime that she did not commit. Upon her acquittal, private respondent’s act of immediately requesting that she be reinstated to her position negates any claim that she abandoned the same.

Private respondent had been unjustifiably dismissed from the service due to petitioner’s rigid and unreasonable application of the civil service rules. Faced with a choice between a decision that will serve justice and another that will deny it because of a too-strict interpretation of the law, the Court, as in this case, will resolve in favor of the former, for the ultimate end of the law is justice.16 Indeed, "[a]s judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence."17

For the foregoing reasons, I concur with the majority opinion and vote to DENY the petition.

With due respect, I dissent from the ponencia penned by Mr. Justice Josue N. Bellosillo. I believe that, on the basis of applicable laws and rules, the Makati City government is correct in contending (1) that Respondent Eusebia R. Galzote should be deemed absent without leave (AWOL) and dropped from the roll of employees, and (2) that she was not deprived of due process.

The ponencia of Justice Bellosillo upholds the Court of Appeals and the Civil Service Commission which considered Galzote "excused from filing her application for leave of absence because she could not report [for] work. She is therefore on automatic leave of absence for the period of her detention xxx."¹

To begin with, the current Civil Service Law and Rules do not contain any provision on automatic leaves of absence. This is not disputed. The Rules, inter alia, unmistakably state that government employees who are AWOL for at least 30 days shall be dropped from the service:

"Sec. 35. Officers and employees who are absent for at least thirty (30) days without approved leave are considered on Absence Without Leave (AWOL) and shall be dropped from the service after due notice. However, when the exigencies of the service require his immediate presence and he fails/refuses to return to the service, the head of office may drop him from the service even prior to the expiration of the thirty (30) day period abovestated."

In providing for absence without approved leave, the above regulation makes no distinction or qualification. It gives no regard for the reason for the absence. It simply states that an employee who fails to report continuously for at least thirty days without an approved leave is considered absent without leave.

Moreover, Section 20 of the Rules states that the approval of a leave of absence is "contingent on the needs of the service."

"Sec. 20. Leave of absence for any reason other than illness of an officer or employee or of any member of his immediate family must be contingent upon the needs of the service. Hence, the grant of vacation leave shall be at the discretion of the head of department/agency."

Clearly, the approval of a leave for any reason other than the illness of an officer or employee, or of any member of that employee’s immediate family, cannot be presumed. To stress, it is granted only after evaluation of the "needs of the service." Thus to secure such approval, it becomes necessary for one to file an application for it before exceeding 30 days of absence in order to avoid being dropped from the rolls. There being no specific or clear-cut provision allowing an automatic leave of absence, the above-quoted rule forecloses the possibility of such leave, even on the ground of incarceration. After all, an incarcerated person is not prevented from communicating with the outside world.

In this case, since Galzote did not file an application for any type of leave -- whether sick leave, vacation leave or leave without pay -- she cannot be said to have an approved leave.

True, she could not have physically reported for work during her incarceration. However, there was nothing to stop her from writing to petitioner, informing it of her plight and applying for leave. Even if she was deprived of her liberty, she retained the capacity to inform petitioner that she was still interested in her job. That information was necessary to enable the government to take appropriate measures to ensure the smooth delivery of its services to the public.

The government cannot be left in the lurch. Public service would suffer if the position of a government employee, who just disappears without a word, were be left vacant for an indefinite period of time. "Public office requires utmost integrity and strictest discipline. x x x. A public office is a public trust; and all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency."² Every public employee is bound to xxx act primarily for the benefit of the public.³ Consequently, private respondent’s nonchalance with respect to her duties as a government employee should not be countenanced.

"Sec. 60. Leave of Absence. – Officers and employees in the Civil Service shall be entitled to leave of absence, with or without pay, as may be provided by law and the rules and regulations of the Civil Service Commission in the interest of the service.

The law is crystal clear. The only leave of absence that a civil service employee like Galzote is entitled to is that which may be provided by law, rules and regulations. Neither the law nor the rules and regulations of the CSC provide for automatic leaves of absence.

More important, the law itself, while granting leaves of absence, still considers the grant subservient to the "interest of the service." Thus, as between the ponencia’s interpretation that would prejudice the government service and an interpretation that would promote and enhance it, surely the latter should be upheld.

As can be seen from the legal provisions on leaves, it was the duty of Galzote to appraise the government of her inability to report for work. Having been absent for more than 30 days without an approved leave, she was clearly AWOL. Pursuant to the Civil Service Law and Rules, she should be dropped from the service. The rule of law requires no less.

The majority faults the Makati government for its "punctilious adherence to technicality" in requiring observance of the rule on leaves of absence. I respectfully submit that an application for leave is not a mere formality; it is not a "useless ceremony" as the majority calls it. It is essential to the proper delivery of service to the public. If the government employees are given absolute discretion to be absent on their mere say-so, without an approved leave, then the efficiency of public service will depend on the whim of the individual employee.

Much is also being argued about the acquittal of Galzote -- that because she was released from detention, then she should ipso facto be returned to her old job and given back pay. This is clearly untenable. Respondent’s entanglement in the crime of kidnapping was not instigated by petitioner. The criminal charge was not the reason for the loss of her employment. She was not dropped from the rolls because of the pending criminal case. She lost her job because of her unexplained absence for several years -- her absence without an approved leave. In short, she was dropped from the rolls because she was AWOL.

The ponencia also contends that the Civil Service Commission is granted sufficient residual authority via its power of "interpreting" its own rules, to allow "automatic" leaves of absence. I disagree. How can the Commission "interpret" a nonexisting provision? It is undisputed that the CSC Law and Rules do not provide for an "automatic" leave. Construction or interpretation is resorted to only in case of doubt on how to understand an existing legal provision. In the present case however, there is no room for doubt: very clearly, the law and the rules do not provide for "automatic" leaves of absences. What is there to interpret?

The Court, in a number of cases, has always adhered to the well-settled rule that "when the law speaks in clear and categorical language, there is no reason for interpretation or construction, but only for application."⁵ Indeed, "a meaning that does not appear nor is intended or reflected to appear in the very language of the statute cannot be placed therein."⁶ Verily, "[o]urs is not the duty nor the power to amend the statute, which by the way, presents no interstitial space wherein to insert, in the words of Cardozo, ‘judge-made innovations."’⁷

In People v. Maceran,⁸ the Court through then Justice (later Chief Justice) Ramon C. Aquino explained the limitations of administrative regulations adopted under legislative authority, as follows:

"Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of law, and should be for the sole purpose of carrying into effect its general supervisions. By such regulations, of course, the law itself cannot be extended. (U.S. vs. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

"The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As invalid regulations, see Collector of Internal Revenue vs. Villaflor, 69 Phil. 319; Wise & Co., vs. Meer, 78 Phil. 655, 676; Del Mar vs. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349)."⁹

This principle has been reiterated by the Court in Shell Philippines v. Central Bank of the Philippines¹⁰ and Land Bank of the Philippines v. CA.¹¹

Applying this principle to the instant case, I believe that the CSC has no power to interpret an inexistent rule, especially if such "interpretation" takes away the provision of Section 60 of EO 292 which mandates that leaves of absence shall be allowed only "in the interest of the service" -- meaning, approval cannot be presumed but may be granted only after considering "the exigencies of government service."

The ponencia rules that Gonzales v. Civil Service Commission¹² "fits snugly into the instant case." I disagree. Gonzales involves the failure of the officials of the Agriculture Training Institute to act on the request for leave of absence without pay of therein petitioner, a government employee who has rendered 36 years of his life to public service and who received two merit awards for his continuous, dedicated, and faithful service in the government. In the present case, respondent who was charged with the heinous crime of kidnapping with serious physical injuries and who was acquitted "on reasonable doubt," did not apply for a leave of absence. This is precisely the problem here -- respondent did not apply for any leave, whether with or without pay. On the other hand, the issue in Gonzales involved the refusal of his superiors to approve his application. Gonzales did not pass upon the critical issue of automatic leaves. How then can Gonzales "fits snugly" in the present one?

The majority also insists that in University of the Philippines v. Civil Service Commission,¹³ -- a Decision I had the honor of writing -- this court allowed UP to continue employing a teacher who had gone AWOL; thus, the ponencia opines that the same token, we should also allow herein private respondent -- who was also AWOL -- to resume her employment.

Again, I disagree. The cited case was decided on the basis of UP’s academic freedom to select its own teaching faculty. Hence, it should be exempted from the scope of CSC Rules. In the present case, academic freedom is NOT involved at all. Herein Petition refers to an ordinary employee of the Makati government -- not to a teaching personnel of the State University, who has been the recipient of scholarship grants and whose continuation in UP’s faculty roster is thus "in the interest of the service." I stress that it was UP, the employer, which wanted to retain the teacher; here, it is the unwanted employee who is insisting on her employment. At bottom, the facts of the present proceedings are simply incongruent with those of the cited case.

The ponencia also asserts that there was no need for Galzote to file an application for leave, since the "city government of Makati had placed her under suspension."

In Bangalisan v. Court of Appeals,¹⁴ this Court has ruled that preventive suspension is valid only as an incident in a pending administrative investigation.

"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 determined whether he may be placed under preventive suspension."

In the present case, there is no pending administrative investigation involving dishonesty, oppression or grave misconduct, or neglect in the performance of duty. Neither was there, on September 9, 1991, any charge against Galzote that would warrant her removal for the service. Accordingly, the "suspension" imposed on her was clearly erroneous and void. Consequently, she was not excused from filing an application for leave.

The majority claims that to attribute to Galzote knowledge of the nullity of her suspension is "too harsh" on a "lowly clerk." Suffice it to say that "ignorance of the law excuses no one from compliance therewith."¹⁵

Assuming for the sake of argument that Galzote’s preventive suspension was valid or that the Makati government is, as argued by the majority, "estopped from claiming that its order of suspension is void," still it is hornbook doctrine under Section 52 of the Administrative Code that a preventive suspension is valid only for "a period of ninety (90) days after the date of suspension."

At best then, Galzote can seek shelter in this void suspension order only for 90 days. Thereafter, she should have applied for the required leave of absence. Since her suspension was only from September 9, 1991 to December 8, 1991, she could indeed be dropped from the service thirty days after that date for being AWOL.

Finally, the appealed CA Decision requires the government to give back pay to respondent for the many years she did not work, the years she was unheard from, the years during which another employee performed what she should have done. This is most unfair. The Makati government is being made to pay for the absent employee’s rank negligence or failure in applying for a leave of absence.

Section 35 of the Civil Service Rules provides that an employee who is on AWOL "shall be dropped from the service after due notice."

In this case, petitioner sent Galzote a letter dated January 21, 1993, informing her that she had been reported absent without leave for over a year, for which reason she was dropped from the rolls. That letter was delivered to her house. She did not respond to, much less contest, this letter.

The Court of Appeals assumed that petitioner knew of the continued incarceration of Galzote and thus opined that it knew her address to be the Rizal Provincial Jail, Pasig, Metro Manila, as of January 21, 1993. An examination of the records, however, shows a total absence of support for such assumption. It is undisputed that she had not filed any application for leave of absence. It therefore follows that petitioner had no record of the reason for her continued absence.

It should be considered further that petitioner is a public corporation. Thus, to expect it -- specially its many officials -- to take a special interest in, know, and keep track of the whereabouts of Galzote, would be unreasonable and unjustly burdensome on its part, when she herself did not bother to inform it of her situation. She was merely one of its many thousand employees. For it to rely on its records in ascertaining where to address notices to its numerous employees would be more in accord with reason and the exigencies of the public service. Consequently, the letter addressed to private respondent and delivered to her house, informing her that she was considered AWOL was due notice to her.

Finally, in Quezon v. Borromeo,¹⁶ this Court en banc -- speaking through the learned Justice Florentino P. Feliciano -- has unanimously ruled that the notice contemplated by the Civil Service Rules is not jurisdictional in nature and the failure to give such notice does not prevent the dropping of the employee concerned from the government service.1âwphi1 Said the Court:

"We read Isberto and Ramo to have held, and in any case we now so hold, that the written notice contemplated in Rule XVI, Section 33 is not jurisdictional in nature and that the failure to give such notice by the appropriate government office does not prevent the dropping of the employee concerned from the government service. In the nature of things, staying away from one’s regular employment in the government or remaining on leave without pay is something that an employee can scarcely be unaware of."

Indeed, government service would greatly suffer if public servants are allowed unbridled liberty in finding excuses for the violation of simple rules. In the present case, respondent was not prevented by the alleged "circumstances beyond her control" from writing her superiors and advising them of her desire to resume work after her incarceration.

Why should public service be prejudiced by her unexcused failure to apply for a legally required leave of absence? It must be stressed that approval of a leave application is not automatic, but is subject to the discretion of competent authorities, depending on the exigencies of the service. So, how can a leave be ever automatic, especially here where no application was even filed? Approved cannot be presumed.

What is more, the appealed CA Decision requires the government to give back pay to respondent for the many years she did not work, the years she was unheard from and the years that another person performed what she should have done.

The ponencia holds that the "back pay and benefits she would receive will not even be enough to compensate her for the untold sufferings and privations she went through while in jail." This tear-jerking rhetoric, with all due respect, is misplaced. I stress that the Makati government had absolutely nothing to do with her incarceration. Why should it pay for such alleged "untold sufferings"? Let it be remembered that she was acquitted "on reasonable doubt," not because of any finding that she did not participate in the crime. If compensation is due her, then it should come from those who caused her alleged "privations" -- from those who "maliciously prosecuted" her if any -- not from her clearly innocent employer. This is just and fair.

I believe that the better policy is to uphold public service, discipline and integrity. No work, no pay. No application, no approval. No leave, no benefits. The rule of law requires no less.