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
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.
I respectfully submit that this holding will not stand scrutiny and analysis.
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. Every public employee is bound to xxx act primarily for the benefit of the public. 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 292 -- 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
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. 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. 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.
In People v. Maceran, 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.
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.
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 Commission 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, -- 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
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
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
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.
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
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
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
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
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, 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.
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
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.
 CA Decision, p. 6; rollo, p. 13.
e Hijos de Crispulo
 Section 60, ibid.
 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.
 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.
v. Macadaeg, et al., 94 Phil. 862, 864,
 79 SCRA 450,
 Ibid., p. 458.
 Supra, p. 633.
 Supra, p. 407.
 226 SCRA 66,
 GR No. 132860,
 276 SCRA 619,
 149 SCRA 205, 216,