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FIRST DIVISION

G.R. No. 140359. June 19, 2000

HERMAN CANIETE and WILFREDO ROSARIO, Petitioners, v. THE SECRETARY OF EDUCATION, CULTURE AND SPORTS, respondent.

D E C I S I O N

KAPUNAN, J.:

Petitioners Herman Caniete and Wilfredo Rosario seek the reversal of the Decision, dated 17 June 1999, of the Court of Appeals in CA-G.R. SP No. 46835 and its Resolution, dated 6 October 1999, denying petitioners motion for reconsideration.

Petitioners are public school teachers at the Juan Sumulong Highhool in Quezon City. For being absent on 20 and 21 September 1990, they were charged by Secretary Isidro Cario, then Secretary of the Department of Education, Culture and Sports, with alleged participation in the mass actions/strikes on said dates. Petitioners were placed under preventive suspension on 21 September 1990. In his decisions, dated 28 May 1991 and 9 July 1992, Secretary Cario found petitioners "guilty as charged" and dismissed them from the service "effective immediately." The said decisions of Secretary Cario, however, were set aside by the Merit Systems Protection Board (MSPB) when the case was brought to it on appeal. The MSPB found that petitioners were guilty only of Gross Violation of Existing Civil Service Law and Rules and suspended them for three (3) months without pay.

In its Resolution No. 94-4670, dated 30 August 1994, the Civil Service Commission (CSC) modified the decision of the MSPB. The CSC found that petitioners were only guilty of being absent on 20 and 21 September 1990 without the necessary leave of absence, and not as charged by Secretary Cario of participating in the mass actions/strikes on said dates. Accordingly, petitioners were meted out the penalty of reprimand. The dispositive portion of the CSC resolution reads:

WHEREFORE, foregoing premises considered, the Commission resolves to find Herman P. Caniete and Wilfredo A. Rosario guilty of Violation of Reasonable Office Rules and Regulations. The assailed decision is thus modified as they are hereby meted out the penalty of reprimand. They are automatically reinstated in the service without payment of back salaries.¹cräläwvirtualibräry

Petitioners moved for a reconsideration of the CSC resolution insofar as it disallowed the payment of their back salaries. The CSC denied their motion for reconsideration. Petitioners then elevated the case to the CA but the latter affirmed the decision of the CSC. In denying petitioners claim for back salaries, the CA cited City Mayor of Zamboanga vs. CA,² where this Court held:

x x x back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. In Sales vs. Mathay, Sr., 129 SCRA 321, this Court held that a postal clerk suspended for six months for gross neglect of duty is not entitled to back salary if he cannot show that his suspension was unjustified or that he is innocent of the charge.

Thus, the order of payment of full backwages in this case is without lawful basis. Indeed, to allow private respondent to receive full back salaries would amount to rewarding him for his misdeeds and compensating him for services that were never rendered.³cräläwvirtualibräry

Petitioners filed a motion for reconsideration of the above decision but the CA denied the same in its Resolution, dated 6 October 1999. Hence, this appeal.

The singular issue that needs to be resolved in this case is whether petitioners, who were earlier dismissed for allegedly participating in mass actions/strikes, are entitled to their back salaries upon their reinstatement after they were found guilty only of violating reasonable office rules and regulations and penalized only with reprimand.

The Court finds for the petitioners.

As correctly pointed out by petitioners, the ruling in Gloria vs. Court of Appeals⁴ is squarely applicable in this case as the facts are substantially the same. In Gloria, the public school teachers therein were either suspended or dismissed for allegedly participating in the strikes sometime in September and October 1990. They were eventually exonerated of said charge and found guilty only of violation of reasonable office rules and regulations by failing to file applications for leave of absence. Thus, the penalty of dismissal earlier imposed on them was reduced to reprimand and their reinstatement was ordered. Moreover, this Court affirmed the payment of back salaries of said teachers explaining that although "employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent."⁵cräläwvirtualibräry

The pertinent provisions of the Civil Service Law (Book V, Title I, Subtitle A of the Administrative Code) on preventive suspension are as follows:

SEC. 47. Disciplinary Jurisdiction.

xxx

(2) 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 may be initially appealed to the department and finally to the Commission and pending appeal, 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.

xxx

(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.

SEC 51. Preventive Suspension.- The 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.

SEC. 52. Lifting of Preventive Suspension Pending Administrative Investigation.- When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

Thus, there are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (47[4]).⁶cräläwvirtualibräry

We held in Gloria that the employee who is placed under preventive suspension pending investigation is not entitled to compensation because such suspension "is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation."⁷ Upon the other hand, there is right to compensation for preventive suspension pending appeal if the employee is eventually exonerated. This is because "preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension."⁸cräläwvirtualibräry

The public school teachers in Gloria who were exonerated of the charge against them, i.e., participating in the strike, and found guilty only of violating reasonable office rules and regulations and reprimanded, were held to be entitled to back salaries. We ruled:

Private respondents were exonerated of all charges against them for acts connected with the teachers strike of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated:

"With respect to petitioner Rodolfo Mariano, payment of his backwages 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 of his intended absence and neither did he file an application for leave covering such absences.

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."

In Jacinto v. Court of Appeals, a public school teacher who was found guilty of violation of reasonable office rules and regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of the charge of having taken part in the strikes.⁹cräläwvirtualibräry

Given the substantial factual similarities of this case to Gloria, there is clearly no reason for this Court to rule against the payment of back salaries to herein petitioners.

WHEREFORE , the petition is given DUE COURSE. The Decision, dated 7 June 1999, and Resolution, dated 6 October 1999, of the Court of Appeals are REVERSED and SETASIDE. Respondent DECS is ORDERED to pay petitioners Herman Caniete and Wilfredo Rosario their salaries from the time of their dismissal by the Department of Education, Culture and Sports until their actual reinstatement, for a period not exceeding five years.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

¹ Rollo, p. 39.

² 182 SCRA 785 (1990)

³ Id., at 789-790.

⁴ 306 SCRA 287 (1999)

⁵ Id., at 302.

⁶ See Note 4, at 296.

⁷ Id., at 303.

⁸ Id.

⁹ Id., at 305-306.