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Civil Law Reviewer - Dean Ed Vincent Albano

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DISSENTING OPINION

PANGANIBAN, J.:

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.

1. Galzote Was AWOL

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.1cräläwvirtualibräry

I respectfully submit that this holding will not stand scrutiny and analysis.

No Automatic

Leave of Absence

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 employees 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 respondents nonchalance with respect to her duties as a government employee should not be countenanced.

Over and above the Civil Service Rules, the law -- EO 2924 -- provides:

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 ponencias 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. Respondents 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.

Interpretation Refers Only

to Extant Laws and Rules

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.7cräläwvirtualibräry

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).[9cräläwvirtualibräry

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.11cräläwvirtualibräry

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.

Incongruent Citations

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 UPs 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 UPs 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.

Galzotes Suspension

Was Not Valid

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.15cräläwvirtualibräry

Assuming for the sake of argument that Galzotes 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 employees rank negligence or failure in applying for a leave of absence.

2. Galzote Was Accorded Due Process

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. 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 ones regular employment in the government or remaining on leave without pay is something that an employee can scarcely be unaware of.

EPILOGUE

OVER AND ABOVE the legalisms debated in the ponencia and in this opinion is the judicial policy of upholding public service. Our Ethical Standards Law requires public officials and employees to observe utmost integrity and strictest discipline. They cannot be allowed to just disappear from their jobs and then, after many years, claim that their absence was due to circumstances beyond their control.

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.


Endnotes:

1 CA Decision, p. 6; rollo, p. 13.

2 Makati Movement Against Graft and Corruption v. Dumlao, 247 SCRA 108, August 9, 1995, Kapunan, J.

3 Viuda e Hijos de Crispulo Zamora v. Wright and Segado, 53 Phil 613, 625, September 28, 1929, Villamor, J.

4 Section 60, ibid.

5 Land Bank of the Philippines v. CA, 258 SCRA 404, 407, July 5, 1996, per Francisco, J.; Shell Philippines, Inc. v. Central Bank of the Philippines, 162 SCRA 628, 633, June 27, 1998.

6 Mankiad v. Tanodbayan, 127 SCRA 724, 728, February 20, 1984, per Escolin, J., citing Chang Yung Fa et al. v. Ganzon, 97 Phil. 913, November 25, 1955.

7 Crisolo v. Macadaeg, et al., 94 Phil. 862, 864, April 29, 1954, per Bengzon, J (later CJ).

8 79 SCRA 450, October 18, 1977.

9 Ibid., p. 458.

10 Supra, p. 633.

11 Supra, p. 407.

12 226 SCRA 66, September 2, 1993.

13 GR No. 132860, April 3, 2001, per Panganiban, J.

14 276 SCRA 619, July 31, 1997, per Regalado, J. See also Jacinto v. Court of Appeals.

15 Art. 3. Civil Code; Espino v. Salubre, AM MTJ-00-1255, February 26, 2001.

16 149 SCRA 205, 216, April 9, 1987, per Feliciano, J., citing Ramo v. Elefao, 106 SCRA 221, 234, July 30, 1981.




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