Chapter Ten

 

 

Civil Servants’ Right to Compensation

During Preventive Suspension

 

 

          The present Civil Service Law, found in Book V, Title I, Subtitle A of the Administrative Code of 1987 (EO 292), provides:

 

          “SEC. 47.  Disciplinary Jurisdiction.  x x x

 

          “(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 decision 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 [Civil Service] 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.

 

                   x x x                       x x x                       x x x

 

          “(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.”

 

 

 

          The foregoing provisions delineate two kinds of preventive suspension applicable to civil service employees who are charged with offenses punishable with removal or suspension.  These are:  “(1) preventive suspension pending investigation (ß51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplinary authority is suspension or dismissal and, after review, the respondent is exonerated (Sec. 47, par. 4).”

 

When administrative charges punishable with suspension or dismissal are filed against government officials or employees covered by the Civil Service Law, they may be suspended immediately for 90 days to prevent them from using their respective offices to intimidate or influence witnesses against them.  If the investigation is not finished within this period, the suspension shall be deemed lifted and the respondents automatically reinstated.  Should they be found guilty and they appeal the judgment, their suspension shall remain during the period of appeal.  On the other hand, if they are eventually exonerated, they shall be entitled to compensation or back pay corresponding to the period of their suspension.

 

          In Gloria v. Court of Appeals,[1] a divided Court ruled that the private respondent was entitled to compensation only for the period of time he was suspended pending appeal, but not for the days he was suspended pending investigation.  Speaking through Mr. Justice Vicente V. Mendoza,[2] the Court observed that while Section 35 of the old Civil Service Act (RA 2260) expressly granted “full pay for the period of suspension,” the current law cited earlier (EO 292) was silent on whether such compensation should be allowed.  The majority relied heavily on the construction rule that an “amendment by deletion of certain words or phrases in a statute indicates that the legislative intended to change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the intention been not to effect a change in its meaning.”

Citing Mechem,[3] Justice Mendoza wrote:  “[I]t is not enough that an employee is exonerated of the charges against him.  In addition, his suspension must be unjustified.”  He concluded that since the suspension of civil service employees was authorized by the Civil Service Law, “[i]t cannot, therefore, be considered as ‘unjustified,’ even if later the charges are dismissed so as to justify the payment of salaries to the employees concerned.  It is one of those sacrifices which holding a public office requires for the public good.”

 

          During the deliberations of the Court, I argued for the grant of back wages not only during the period of preventive suspension pending appeal, but also during the days pending investigation, if eventually the suspended civil servant was found innocent of the charges.  I opined that the Court was being too literal and unfair to government employees in interpreting the Civil Service Law.  In adopting the strict rule on statutory construction, I believed, as I still do, that the Court was in effect reversing several decisions[4] that had ordered payment of back salaries “without any qualification or deduction.”  If the employees have been found to be innocent “of any offense warranting even just a dismissal, there is no justifiable reason to deprive them of work and income therefor.  In these cases, their preventive suspension must be deemed unjustified.”

 

          In my Separate Opinion,[5] I wrote in part:

 

          "The majority admits that preventive suspension pending investigation is not a penalty, but is only a means of enabling the disciplining authority to conduct an unhampered investigation.  Not being a penalty, there is therefore NO reason to deny employees their salaries for such period, especially after they are proven innocent of any offense punishable with suspension or dismissal.  I respectfully submit that to withhold an exonerated employee’s pay for such period would in fact transform the nature of preventive suspension into a penalty -- a penalty which is unauthorized by law, in contravention of the fundamental right of every individual to due process, and [is] therefore unconstitutional.

 

          “The 'no-work-no-pay' principle should not be applied in these cases.  We must consider that, ordinarily, suspended employees are willing to work, but they do not have a choice.  Because of some serious charges leveled against them, they are not allowed to report for work.  Investigations may take up to ninety (90) days or three (3) months.  In the meantime, they do not receive their salaries and other benefits.  And yet, the charges against them may have been baseless or aggravated without good reason, in which case their suspensions are unjustified ab initio.  In these instances, I repeat, it is but right to grant them full back pays.

 

          “Admittedly, the purpose behind preventive suspensions pending investigation is noble.  It is intended to enable the disciplining or the investigating officials to probe the charges against respondents by preventing the latter from intimidating or in any way influencing witnesses against them.  But, I submit, it would be totally unfair to respondents who are undeserving of the penalty of suspension or dismissal to be deprived of their salaries for such period.  To repeat, they cannot be faulted for not rendering any work during the period of preventive suspension, because that is merely what the law mandates.

 

          “Significantly, the Civil Service Law does not state that exonerated employees are not entitled to back salaries corresponding to the preventive suspension period.  Such silence of the law should not ipso facto be interpreted as a denial of the right, pursuant to rules on statutory construction.  In any event, the rules on the interpretation of laws are mere tools used to ascertain legislative intent.  They are not necessarily applicable at all times, particularly when the intention to change the meaning of the previous law is not clear.  In the case of the present Civil Service Law, which is found in Executive Order No. 292 issued by then President Corazon Aquino in the exercise of her legislative powers under the Freedom Constitution, its legislative purpose cannot be clearly established, because it has no recorded deliberations from which to verify such intent.  Consequently, we should not completely rely on the general rule on amendment by deletion.  We should not hold the omission of words in the later statute as necessarily altering the construction of the earlier one, for we may do so only 'where the intent of the legislature to make such change is clear of construction.'

 

          “In any event, in the absence of an express prohibition on the payment of back salaries, any doubt should be settled in favor of the employee.  As our fundamental law explicitly mandates, 'The State shall afford full protection to labor x x x.'  This Court has invariably declared that it will not hesitate to tilt the scales of justice in favor of the working class, for the Constitution dictates that 'the State x x x shall protect the rights of workers and promote their welfare.'  There is no reason not to apply this principle in favor of civil service employees as well, for they are very much part of the working class.  And the government as their employer should set the example in upholding the constitutional mandate to safeguard their rights and interests.

 

          “Needless to say, our Constitution stands above all laws; more so, above any treatise including that of Mechem which the ponencia cites.  The interpretation of general laws on public officers in foreign jurisdictions has no application in the present case, as our law has no explicit injunction against the payment of back salaries for preventively suspended employees.  Moreover, the Untied States Constitution provides no express mandate, similar to that found in our Constitution, to 'afford full protection to labor' and to 'protect the rights of workers and promote their welfare.'

 

          “The grant of back pay is a matter not merely of compassion and mercy for employees temporarily suspended from work but, more important, of justice and equity.  The exoneration of the employees proves that there was no reason at all to suspend them in the first place.  To deny them their incomes on the frivolous ground that the law does not expressly provide for the grant thereof would provide a tool for the oppression of civil servants who, though innocent, may be falsely charged [with] grave or less grave administrative offenses.  It plainly opens the door to harassment of public officials and employees by unjustly depriving them of their meager incomes and consequently subjecting them and their families to difficult circumstances.

 

          “Even in the private sector, the law and the existing jurisprudence grant employees who are unjustly dismissed from work not only reinstatement without loss of seniority rights and other privileges, but also full back wages inclusive of allowances and other benefits or their monetary equivalent, computed from the time their compensation was withheld from them up to the time they were actually reinstated.

 

“Civil Service Law Different

from Ombudsman Act

 

          “In this regard, I believe the Civil Service Law should be distinguished from the Ombudsman Act (RA 6770) which categorically and expressly provides that the suspended employee who is exonerated after preventive suspension is entitled to reinstatement, but not back salaries, viz.:

 

          'SEC. 24  Preventive suspension  --  The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.

 

          ‘The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.'

 

          “Hence, in Callanta v. Ombudsman, although some of the petitioners were only reprimanded by the Court for violation of the Ethical Standards Law, no back pay was awarded."

 

 

 

          It is my fervent hope that one day soon, the Supreme Court will reverse Gloria, insofar as it denied back pay to exonerated civil servants.  I strongly feel that law, equity and fairness demand that they be paid for the days they are suspended, if eventually they are found innocent after investigation.  This back pay benefit is granted to their counterparts in the private sector.  I do not see any reason at all why the government of the Republic should discriminate against its employees in the grant of this privilege.  In fact, I firmly believe that it should set the example in giving labor its due.  Only then can it be sanctimonious in its directives to private employers to observe labor laws.


[1]               GR No. 131012, April 21, 1999.

[2]           Justices Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima and Gonzaga-Reyes fully concurred with Justice Mendoza.  Justice Melo concurred “in the result.”

[3]           A Treatise on the Law of Public Offices and Officers, ß 864.

[4]           Among them, Miranda v. Commission on Audit, 200 SCRA 657, August 16, 1991; Bangalisan v. Court of Appeals, 276 SCRA 619, July 31, 1997; Jacinto v. Court of Appeals, 281 SCRA 657, November 14, 1997; Garcia v. Commission on Audit, 226 SCRA 356, September 14, 1993.

[5]           I was joined by Chief Justice Davide Jr. and Justices Puno, Pardo, Buena and Ynares-Santiago.