EN BANC
[G.R. No. 70953. April 9, 1987.]
EMILIE J. QUEZON, Petitioner, v. HON. JESUS N. BORROMEO, in his capacity as Chairman, Civil Service Commission, joined by ALEJANDRO A. MADAMBA, and MARIO D. YANGCO, in their official capacities as Commissioners of the Civil Service Commission; ALFREDO B. DEZA, in his capacity as Commissioner, Merit Systems Board, Civil Service Commission; RAYMUNDO B. VILLONES and BELLA A. AMILHASAN, in their capacities as Associate Commissioners, Merit Systems Board, Civil Service Commission; and DR. ORLANDO B. ALAGAR in his capacity as Chief of Iligan City Hospital, Iligan City, Respondents.
Arturo A. Cabides for Petitioner.
SYLLABUS
1. ADMINISTRATIVE LAW; CIVIL SERVICE ACT; DECISION; DOES NOT BECOME FINAL IF NOT SERVED ON THE PROPER PARTY ADVERSELY AFFECTED BY IT; CASE AT BAR. — Under Section 39 (a), quoted above, a petition for reconsideration may be filed by "the party adversely affected by the decision" within the period for filing an appeal from the decision, i.e., within fifteen (15) days from receipt of the decision by the "party adversely affected by [it]." The party adversely affected by the decision of 22 February 1983 of the Merit Systems Board was not the Civil Service Regional Office, Region 12, nor was it the Chief of the Iligan City Hospital. It was rather the Director of the Regional Health Office, Region 12, who had issued the appointments dated 27 October 1982 and 1 July 1981 to Lourdes Crisol as "Acting Chief Nurse II" and as "Chief Nurse II," respectively, in both cases "vice Emilie Quezon, dropped." In his Comment on the Petition for Review, the Solicitor General stated that the Regional Health Director was never served a copy of the decision. If so, then we agree with the Solicitor General that that decision of the Merit Systems Board never became final and executory as to the Regional Health Director.
2. REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTION OF REGULARITY OF PERFORMANCE OF OFFICIAL DUTY; NOT OVERCOME IN THE CASE AT BAR. — Upon the other hand, petitioner claims that the lawyer who had represented the Regional Health Director in the proceedings before the Merit Systems Board, was furnished a copy of that decision. The records of this case are, however, bereft of any indication (apart from the simple assertion of petitioner’s counsel) that counsel for the Regional Health Director had received a copy of the 22 February 1983 decision and of the date of such receipt. We are, hence, entitled to rely upon the presumption of regularity (which includes the timeliness) of performance of official functions both on the part of the Merit Systems Board when it reconsidered the 22 February 1983 decision and on the part of the Civil Service Commission when it upheld the second decision of the Board. The Regional Health Director was similarly entitled to the benefit of the same presumption when he filed the motion for reconsideration. Petitioner has not overcome this presumption.
3. ADMINISTRATIVE LAW; CIVIL SERVICE ACT; SECTION 33; RULE XVI, REVISED CIVIL SERVICE RULES; REMOVAL FROM SERVICE OF EMPLOYEES ON LEAVE OF ABSENCE WITHOUT PAY FOR MORE THAN THE REQUIRED PERIOD; CASE AT BAR. — We turn to the second contention of the petitioner: that the petitioner was dropped from the government service without notice and without affording her an investigation where she could explain her side, and without the prior warning contemplated in Section 33, Rule XVI of the Revised Civil Service Rules. Section 33 of Rule XVI reads as follows: "Under no circumstances shall leave without pay be granted for more than one year. If an employee who is on leave without pay for any reason fails to return to duty at the expiration of one year from the effective date of such leave, he shall be considered automatically separated from the service; Provided, That he shall, within a reasonable time before the expiration of his one year leave of absence without pay, be notified in writing of the expiration thereof with a warning that if he fails to report for duty on said date, he will be dropped from the service. (Emphasis supplied) In the present case, as noted earlier, petitioner was given a one-year extension of her special study leave, subject to certain conditions, commencing from June 1978. Petitioner’s leave credits were exhausted by 18 July 1978. If we assume, under the view of this case most favorable to the petitioner, that the restriction in Department Order No. 125-A prohibiting any extension of the original 12-month study grant was waived by the Department of Health, and assuming further (but arguendo, merely) that both the first extension of twelve months and the second extension of seven months of her leave without pay (i.e., from June 1978 to June 1979, and from June 1979 to December 1979, respectively) were validly approved, then, under Section 33 of Rule XVI, petitioner was automatically dropped from the service as of January 1980 when she failed to return to work at the end of her approved leave without pay which then already totalled nineteen (19) months.
4. ID.; ID.; ID.; PURPOSE THEREOF; CASES OF ISBERTO VS. RAQUIZA AND RAMO V. ELEFAÑO CITED; CASES AT BAR. — In the present case, it does not appear that petitioner was, at some "reasonable time" before expiration of her approved leave without pay, notified in writing of the impending expiration of such leave and warned that petitioner will be dropped from the service if she failed to report for duty upon such expiration. What was the effect of the Department of Health’s failure to notify the petitioner in writing of the approaching expiration of the maximum permissible leave without pay? Fortunately, this is not a question of first impression. In Isberto v. Raquiza, the Court had occasion to consider and pass upon Rule XVI, Section 33 of the Revised Civil Service Rules: "But it may be argued that plaintiff-appellee was not ever given a written notice within a reasonable period before the date of the expiration of his leave of absence without pay, warning him that if he fails to report for duty on the date his leave of absence without pay expires, he will be dropped from the service. The [purpose of the] proviso in Section 33 of Rule XVI of the Revised Civil Service Rules . . . is to remind the officer concerned of his impending separation from the service so he could prepare for such an eventuality. In the case before Us, however, the plaintiff-appellee did not even have the proper leave of absence without pay because his leave of absence without pay was only up to April 30, 1958 and he did not extend it. He went AWOL (absence without official leave) beginning May 1, 1958 and a applied for reinstatement only on June 20, 1961. The failure of plaintiff-appellee to claim for reinstatement for a period of two and a half years from January 29, 1959 when he was deemed automatically separated from the service is a clear case of abandonment. He ought to have known that he was automatically separated from the service on January 29, 1959. His ignorance of the provision of Rule XVI, Section 33 of the Revised Civil Service rules, providing for automatic separation from the service of an [employee] who fails to return to work after the expiration of his leave of absence without pay did not excuse him. . . ." Ramo v. Elefaño, is also helpful in this connection. There, the Court noted that respondent Elefaño had requested an extension of her leave of absence without pay for another year, 27 days before her one year leave expired. The Regional Civil Service Director did not approve the request for extension and instead invited attention to Section 33, Rule XVI. The letter of the Regional Director was communicated to respondent Elefaño after expiration of her one year leave without pay "for her information and compliance." Elefaño nonetheless failed to return to her position and continued her efforts to secure extension of her leave of absence without pay but without success. Elefaño returned to her position approximately 11 months after expiration of her one year leave of absence without pay. The Court sustained the action of the Board of Trustees of Leyte State College in dropping Elefaño from the service of the college "for having failed to return to duty after the expiration of her one year leave of absence" and reversed the judgment of the lower court which had ordered the Board of Trustees to reinstate Elefaño.
5. ID.; ID.; ID.; WRITTEN NOTICE CONTEMPLATED THEREIN NOT JURISDICTIONAL IN NATURE; FAILURE TO GIVE SUCH NOTICE DOES NOT PREVENT THE DROPPING OF THE EMPLOYEE CONCERNED; CASE AT BAR. — 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. In the instant case, the petitioner was clearly aware that she was on an extended leave without pay. Her repeated requests for extensions of her original special study leave are evidence of her awareness that she needed official approval for such continued leave. When approval of her requests for the third and fourth extensions of her original study leave was not forthcoming, petitioner resorted to a request on 13 September 1980 that she be detailed to the Zamboanga General Hospital. This too was not approved by the Regional Health Office, Region 12.
6. ID.; ID.; ABANDONMENT OF POSITION; EMPLOYEES INABILITY TO REPORT FOR WORK AFTER THE LAPSED OF THE REQUIRED PERIOD TO REPORT FOR DUTY WITHOUT THE APPROVAL OF THE OFFICE CONCERNED; CASE AT BAR. — Here, as in Isberto and Ramo, there is not only violation of Rule XVI, Section 33 but also abandonment of her position on the part of petitioner. From January 1980, when she was automatically dropped from the service pursuant to Rule XVI, Section 33, up to 6 January 1982 when petitioner reported for duty and in effect asked for reinstatement, a period of two years had elapsed, during which time petitioner must be regarded as having been absent without leave (AWOL). Petitioner completely disregarded the fact that her requests for extensions and for detail to Zamboanga were never approved by the Department of Health authorities, and continued to stay away until it suited her to return and demand reinstatement at the Iligan City Hospital. She was of course not entitled to assume that her requests would be approved, as they could not be approved, being in direct contravention of Rule XVI, Section 33.
7. ID.; PROCEDURAL DUE PROCESS; REQUIREMENT; PRIOR HEARING BEFORE AN ADVERSE JUDGMENT; EXCEPTION; RULE XVI, SECTION 33 PROVIDES FOR THE AUTOMATIC DROPPING OR REMOVAL FROM THE SERVICE OF "AWOL" EMPLOYEES; CASE AT BAR. — Petitioner also complains that no investigation was held by the Department of Health authorities before she was in fact regarded as dropped from the service and Lourdes Crisol appointed to petitioner’s former position. Even so, we do not believe that she has been denied procedural due process. Rule XVI, Section 33 speaks of automatic dropping from the government service and thus clearly does not require prior hearing before an employee may be dropped from the government service. The requirements of procedural due process do frequently include a prior hearing before adverse consequences may be visited by the government upon individuals. There are, however, exceptions and what we have here is an exception. There appears no way by which the government can compel an unwilling employee to return to his post; the instant case affords ample illustration of his incapacity. The automaticity of the sanction of dropping or removal from the government service under Rule XVI, Section 33 is precisely one of the means by which return to an employee’s post is sought to be achieved. That automaticity also enables the government to fill the office in effect abandoned by the employee involved, as the exigencies of the service may demand. The requirements of government service, especially the needs of a government hospital for the services of nurses, cannot be made to wait upon the convenience of an employee who insists on being "AWOL."cralaw virtua1aw library
8. ID.; ID.; ID.; ID.; ID.; ID.; WHEN LEGALITY OF REMOVAL CAN BE CONTESTED; NO DENIAL OF DUE PROCESS IN THE CASE AT BAR. — The demands of procedural due process are satisfied by giving an employee who has been "AWOL" the opportunity to contest the legality of his being dropped from the government service upon his return to his post. Indeed, as a purely practical matter, it is very difficult to see how hearing can be had and due process extended to the employee unless he first reports for work. Here, petitioner was given a full hearing and full opportunity to present her side before the Merit Systems Board and the Civil Service Commission after she had reported for work and demanded reinstatement. Here, the requirements of procedural due process were fully met.
2. REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTION OF REGULARITY OF PERFORMANCE OF OFFICIAL DUTY; NOT OVERCOME IN THE CASE AT BAR. — Upon the other hand, petitioner claims that the lawyer who had represented the Regional Health Director in the proceedings before the Merit Systems Board, was furnished a copy of that decision. The records of this case are, however, bereft of any indication (apart from the simple assertion of petitioner’s counsel) that counsel for the Regional Health Director had received a copy of the 22 February 1983 decision and of the date of such receipt. We are, hence, entitled to rely upon the presumption of regularity (which includes the timeliness) of performance of official functions both on the part of the Merit Systems Board when it reconsidered the 22 February 1983 decision and on the part of the Civil Service Commission when it upheld the second decision of the Board. The Regional Health Director was similarly entitled to the benefit of the same presumption when he filed the motion for reconsideration. Petitioner has not overcome this presumption.
3. ADMINISTRATIVE LAW; CIVIL SERVICE ACT; SECTION 33; RULE XVI, REVISED CIVIL SERVICE RULES; REMOVAL FROM SERVICE OF EMPLOYEES ON LEAVE OF ABSENCE WITHOUT PAY FOR MORE THAN THE REQUIRED PERIOD; CASE AT BAR. — We turn to the second contention of the petitioner: that the petitioner was dropped from the government service without notice and without affording her an investigation where she could explain her side, and without the prior warning contemplated in Section 33, Rule XVI of the Revised Civil Service Rules. Section 33 of Rule XVI reads as follows: "Under no circumstances shall leave without pay be granted for more than one year. If an employee who is on leave without pay for any reason fails to return to duty at the expiration of one year from the effective date of such leave, he shall be considered automatically separated from the service; Provided, That he shall, within a reasonable time before the expiration of his one year leave of absence without pay, be notified in writing of the expiration thereof with a warning that if he fails to report for duty on said date, he will be dropped from the service. (Emphasis supplied) In the present case, as noted earlier, petitioner was given a one-year extension of her special study leave, subject to certain conditions, commencing from June 1978. Petitioner’s leave credits were exhausted by 18 July 1978. If we assume, under the view of this case most favorable to the petitioner, that the restriction in Department Order No. 125-A prohibiting any extension of the original 12-month study grant was waived by the Department of Health, and assuming further (but arguendo, merely) that both the first extension of twelve months and the second extension of seven months of her leave without pay (i.e., from June 1978 to June 1979, and from June 1979 to December 1979, respectively) were validly approved, then, under Section 33 of Rule XVI, petitioner was automatically dropped from the service as of January 1980 when she failed to return to work at the end of her approved leave without pay which then already totalled nineteen (19) months.
4. ID.; ID.; ID.; PURPOSE THEREOF; CASES OF ISBERTO VS. RAQUIZA AND RAMO V. ELEFAÑO CITED; CASES AT BAR. — In the present case, it does not appear that petitioner was, at some "reasonable time" before expiration of her approved leave without pay, notified in writing of the impending expiration of such leave and warned that petitioner will be dropped from the service if she failed to report for duty upon such expiration. What was the effect of the Department of Health’s failure to notify the petitioner in writing of the approaching expiration of the maximum permissible leave without pay? Fortunately, this is not a question of first impression. In Isberto v. Raquiza, the Court had occasion to consider and pass upon Rule XVI, Section 33 of the Revised Civil Service Rules: "But it may be argued that plaintiff-appellee was not ever given a written notice within a reasonable period before the date of the expiration of his leave of absence without pay, warning him that if he fails to report for duty on the date his leave of absence without pay expires, he will be dropped from the service. The [purpose of the] proviso in Section 33 of Rule XVI of the Revised Civil Service Rules . . . is to remind the officer concerned of his impending separation from the service so he could prepare for such an eventuality. In the case before Us, however, the plaintiff-appellee did not even have the proper leave of absence without pay because his leave of absence without pay was only up to April 30, 1958 and he did not extend it. He went AWOL (absence without official leave) beginning May 1, 1958 and a applied for reinstatement only on June 20, 1961. The failure of plaintiff-appellee to claim for reinstatement for a period of two and a half years from January 29, 1959 when he was deemed automatically separated from the service is a clear case of abandonment. He ought to have known that he was automatically separated from the service on January 29, 1959. His ignorance of the provision of Rule XVI, Section 33 of the Revised Civil Service rules, providing for automatic separation from the service of an [employee] who fails to return to work after the expiration of his leave of absence without pay did not excuse him. . . ." Ramo v. Elefaño, is also helpful in this connection. There, the Court noted that respondent Elefaño had requested an extension of her leave of absence without pay for another year, 27 days before her one year leave expired. The Regional Civil Service Director did not approve the request for extension and instead invited attention to Section 33, Rule XVI. The letter of the Regional Director was communicated to respondent Elefaño after expiration of her one year leave without pay "for her information and compliance." Elefaño nonetheless failed to return to her position and continued her efforts to secure extension of her leave of absence without pay but without success. Elefaño returned to her position approximately 11 months after expiration of her one year leave of absence without pay. The Court sustained the action of the Board of Trustees of Leyte State College in dropping Elefaño from the service of the college "for having failed to return to duty after the expiration of her one year leave of absence" and reversed the judgment of the lower court which had ordered the Board of Trustees to reinstate Elefaño.
5. ID.; ID.; ID.; WRITTEN NOTICE CONTEMPLATED THEREIN NOT JURISDICTIONAL IN NATURE; FAILURE TO GIVE SUCH NOTICE DOES NOT PREVENT THE DROPPING OF THE EMPLOYEE CONCERNED; CASE AT BAR. — 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. In the instant case, the petitioner was clearly aware that she was on an extended leave without pay. Her repeated requests for extensions of her original special study leave are evidence of her awareness that she needed official approval for such continued leave. When approval of her requests for the third and fourth extensions of her original study leave was not forthcoming, petitioner resorted to a request on 13 September 1980 that she be detailed to the Zamboanga General Hospital. This too was not approved by the Regional Health Office, Region 12.
6. ID.; ID.; ABANDONMENT OF POSITION; EMPLOYEES INABILITY TO REPORT FOR WORK AFTER THE LAPSED OF THE REQUIRED PERIOD TO REPORT FOR DUTY WITHOUT THE APPROVAL OF THE OFFICE CONCERNED; CASE AT BAR. — Here, as in Isberto and Ramo, there is not only violation of Rule XVI, Section 33 but also abandonment of her position on the part of petitioner. From January 1980, when she was automatically dropped from the service pursuant to Rule XVI, Section 33, up to 6 January 1982 when petitioner reported for duty and in effect asked for reinstatement, a period of two years had elapsed, during which time petitioner must be regarded as having been absent without leave (AWOL). Petitioner completely disregarded the fact that her requests for extensions and for detail to Zamboanga were never approved by the Department of Health authorities, and continued to stay away until it suited her to return and demand reinstatement at the Iligan City Hospital. She was of course not entitled to assume that her requests would be approved, as they could not be approved, being in direct contravention of Rule XVI, Section 33.
7. ID.; PROCEDURAL DUE PROCESS; REQUIREMENT; PRIOR HEARING BEFORE AN ADVERSE JUDGMENT; EXCEPTION; RULE XVI, SECTION 33 PROVIDES FOR THE AUTOMATIC DROPPING OR REMOVAL FROM THE SERVICE OF "AWOL" EMPLOYEES; CASE AT BAR. — Petitioner also complains that no investigation was held by the Department of Health authorities before she was in fact regarded as dropped from the service and Lourdes Crisol appointed to petitioner’s former position. Even so, we do not believe that she has been denied procedural due process. Rule XVI, Section 33 speaks of automatic dropping from the government service and thus clearly does not require prior hearing before an employee may be dropped from the government service. The requirements of procedural due process do frequently include a prior hearing before adverse consequences may be visited by the government upon individuals. There are, however, exceptions and what we have here is an exception. There appears no way by which the government can compel an unwilling employee to return to his post; the instant case affords ample illustration of his incapacity. The automaticity of the sanction of dropping or removal from the government service under Rule XVI, Section 33 is precisely one of the means by which return to an employee’s post is sought to be achieved. That automaticity also enables the government to fill the office in effect abandoned by the employee involved, as the exigencies of the service may demand. The requirements of government service, especially the needs of a government hospital for the services of nurses, cannot be made to wait upon the convenience of an employee who insists on being "AWOL."cralaw virtua1aw library
8. ID.; ID.; ID.; ID.; ID.; ID.; WHEN LEGALITY OF REMOVAL CAN BE CONTESTED; NO DENIAL OF DUE PROCESS IN THE CASE AT BAR. — The demands of procedural due process are satisfied by giving an employee who has been "AWOL" the opportunity to contest the legality of his being dropped from the government service upon his return to his post. Indeed, as a purely practical matter, it is very difficult to see how hearing can be had and due process extended to the employee unless he first reports for work. Here, petitioner was given a full hearing and full opportunity to present her side before the Merit Systems Board and the Civil Service Commission after she had reported for work and demanded reinstatement. Here, the requirements of procedural due process were fully met.
D E C I S I O N
FELICIANO, J.:
In this petition for certiorari, petitioner seeks the annulment of Resolution No. 85-015 dated 14 February 1985 of the Civil Service Commission; she also seeks reinstatement in the government service as Chief Nurse in the Iligan City Hospital, Regional Health Office No. 12.
In 1977, petitioner Emilie J. Quezon was a Chief Nurse II of the Iligan City Hospital. By Department Order No. 125-A, s. 1977, dated 25 April 1977, the Secretary of Health authorized petitioner to go on a special study detail to take up or complete a degree course in nursing (BSN) during the academic year 1977-1978, for a period of not more than 12 months. Department Order No. 125-A expressly provided, among other things, that Mrs. Quezon "shall not be allowed any extension of the twelve (12) months study grant.
In 1977, petitioner Emilie J. Quezon was a Chief Nurse II of the Iligan City Hospital. By Department Order No. 125-A, s. 1977, dated 25 April 1977, the Secretary of Health authorized petitioner to go on a special study detail to take up or complete a degree course in nursing (BSN) during the academic year 1977-1978, for a period of not more than 12 months. Department Order No. 125-A expressly provided, among other things, that Mrs. Quezon "shall not be allowed any extension of the twelve (12) months study grant.
