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.

These Administrative Matters were consolidated since they involve the same issues, arise from the same set of facts and have the same respondents. Administrative Matter No. MTJ-86-27 is a complaint filed on October 13, 1986 by George M. Minor and four other members of the Board of Directors of the Zamboanga del Sur Electric Cooperative I, Inc. (ZAMSURECO) against Delfin E. Agbu, Municipal Circuit Trial Court Judge of Ramon Magsaysay, Midsalip and Don Mariano Marcos, Province of Zamboanga del Sur and Loreto M. Quinto, Municipal Circuit Trial Court Judge of the Municipal Circuit Court of Dumingag, Mahayag and Josefina, also of the same province as elective members of the Board of Directors of ZAMSURECO, Judge Agbu from 1980 and Judge Quinto from 1986.

The complainants invoke an en banc resolution of the Supreme Court of May 29, 1980 enjoining judges from acting as directors of an electric cooperative on the ground that their duties and functions as such will prejudice and interfere with the expeditious and proper administration of justice. 1

The respondent judges are charged with dishonesty, breach of trust and gross misconduct.

The complainants pray that the respondent judges be ordered (a) to desist from acting and sitting as directors of ZAMSURECO, (b) to restitute or refund to the cooperative all financial emoluments availed of, received and actually enjoyed as such Directors, (c) for having committed dishonesty, breach of trust and misconduct as members of the bench and Bar, that they be subjected to grave disciplinary action if not outright dismissal from the service as judges and disbarment as attorneys, as well as for such administrative sanctions as the law may warrant.

Complying with this Court’s en banc resolution dated November 11, 1986 the respondents filed separate ANSWERS but were one in asserting that they have a perfect right to become members of the Board of Directors of ZAMSURECO and entitled to all rights and privileges appurtenant thereto citing Section 21 paragraph 2 to P.D. No. 269. 2 The respondents also assert that sitting in the Board of Directors of ZAMSURECO does not interfere with the performance of their functions since the Board meets only twice a month and on Saturdays.

Respondent Judge Agbu admitted the existence of the ruling in the case cited in the complaint but expressed doubt about "the propriety of the ruling because its (sic) not a ruling on the merit of a case but a mere denial by the Supreme Court to the judge who sought permission to act and sit in the board of directors on the theory that sitting in the board may interfer (sic) with the function of the judge, which is manifestly erroneous because said judge should have not ask (sic) permission under the above-quoted provision of law. Besides, had it been the intention of the Supreme Court to prohibit judges from becoming director or holding any position therein, it should have circularized said ruling for the guidance of all judges serving as director in different electric cooperative (sic) throughout the country."cralaw virtua1aw library

Respondent Judge Agbu asserted that he does not question the Supreme Court’s power of supervision and control but contends that in the exercise of such authority, individual rights should be respected. He asserts impairment of substantive rights granted him by law and invokes the equal protection of laws because he is singled out in the prohibition while the complainants who are also government employees are allowed to continue.

On January 2, 1987 this Court received a telegram from Rustico V. Villorejo informing that MTC Judge Delfin Agbu and MTC Judge Loreto Quinto were still sitting as Directors of ZAMSURECO despite the letter-directive from Justice Maximo A. Maceren, Assistant to the Court Administrator, 3 to resign from their positions. The Villorejo telegram requesting implementation of said letter-directive and the action taken on it is Administrative Matter No. 87-1-2705-TEL.

This Court by resolution dated January 8, 1987 directed MTC Judges Delfin Agbu and Loreto Quinto to tender their resignations immediately from their positions or suffer the consequences, considering that their acting and sitting as such will constitute an interference in the expeditious performance of their judicial functions.

On January 28, 1987 the respondent judges filed a motion for reconsideration of the en banc resolution of January 8, 1987 stating that the letter-directive of September 18, 1986 of Justice Maceren was premised on a question that "if it is true, you are directed to resign." Because the respondents did not consider the telegraphic complaint true, they did not resign believing that to do so would be admitting false allegations against them.

They also referred to Administrative Matter No. MTJ-86-27 (George Minor, Et. Al. v. Judges Delfin E. Agbu and Loreto Quinto) to which they had filed their ANSWER as required. They disclaimed any desire to defy this Court but prayed the court to reconsider implementation of the directive to resign until Adm. Matter No. MTJ-86-27 is decided.

On February 12, 1987 this Court denied the motion for reconsideration and resolved to require the respondent judges (a) to SHOW CAUSE why disciplinary action should not be taken against them for their failure to resign immediately as directors of ZAMSURECO and (b) to comply within 72 hours with the resolution of January 8, 1987.

Meanwhile the President and Chairman of ZAMSURECO and Rustico Villorejo informed the Chief Justice that the respondent judges continue to sit in the Board. 4

Respondent Judge Quinto in a letter dated February 26, 1987 and received on March 2, 1987 informed this Court of his compliance with the resolution of February 12, 1987 which he received on February 23rd. However, he tendered a conditional resignation, hoping that on the basis of his manifestation, this Court would reconsider its decision.

He states that lower court judges are "the lowest paid and impoverished" because they are still sending their children to school and that the P800 allowance as director helps alleviate the financial problem of his family. He repeats the assertion that the twice a month meetings on Saturdays do not interfere with the performance of his functions due to the "few number of pending cases" in his court. Furthermore, he reiterates that P.D. No. 269 does not prohibit judges from being elected as officers of electric cooperatives and that the Supreme Court policy disqualifying them is contrary to P.D. 269.

Respondent Judge Delfin E. Agbu filed his explanation dated February 24, 1987 and received by this Court on March 10, 1987. He expressed his belief that the Supreme Court directive is arbitrary and therefore filed a motion for reconsideration which the Supreme Court denied in its February 12, 1987 resolution. He reiterated that it was never his intention to defy the directive of the Supreme Court but was simply asking for clarification because in a similar case, Administrative Matter No. MTJ-86-27 (Minor, et al v. Agbu and Quinto) respondents raised factual and legal issues which the Supreme Court has not ruled on. Unlike Judge Quinto, respondent Judge Agbu has not complied with the directives to resign from the ZAMSURECO board.

The legal issues raised by the respondents are not new. In Lapena v. Marcos, Administrative Matter No. 1969-MJ. June 29, 1982, 114 SCRA 574, 578, this Court held:chanrob1es virtual 1aw library

. . . Judges and personnel of the Judiciary are not explicitly disqualified by P.D. 269 to become members or Directors of Electric Cooperatives. However, We have resolved and adopted in our resolution dated May 29, 1980 5 to enjoin judges from acting as directors of an electric cooperative on the ground that their duties and function as such will prejudice and interfere with the expeditions and proper administration of justice. This policy adopted by the Court enjoining judges from participating in the affairs of electric cooperatives stands and must be complied with.

This policy was adopted by the Supreme Court in the exercise of its constitutional power of administrative supervision over all courts and the personnel thereof to ensure impartial, expeditious and proper administration of justice. It has been consistently applied from the date of its promulgation on May 29, 1980 and the attention of the respondent judges was repeatedly called to it. They were directed to resign from their positions as directors of ZAMSURECO in the letter-directive of September 18, 1986. The legal issues they raise in their answers have been squarely dealt with in Lapena v. Marcos, supra, in an en banc resolution of the Supreme Court published in 114 SCRA 572. In an en banc resolution dated January 8, 1987 this Court directed the respondents to tender their resignation from their positions as directors of ZAMSURECO immediately or suffer the consequences; on February 12, 1987 this Court denied their joint motion for reconsideration and resolved to require them to show cause why disciplinary action should not be taken against them and to comply within 72 hours from notice, with the resolution of January 9, 1987. Respondent Judge Quinto complied by tendering a conditional resignation accompanied with a manifestation seeking a reconsideration of this Court’s ruling. While respondent Judge Agbu submitted an explanation, he has not complied with this Court’s resolutions of January 8, 1987 and February 12, 1987. He reiterates the view that the directive is arbitrary and that he seeks a clarification because this court had not yet ruled on Administrative Matter No. MTJ-86-27 (George M. Minor, Et. Al. v. Judge Delfin E. Agbu and Loreto Quinto).

Considering the above, this Court finds that the failure of the respondent judges to comply with the policy enjoining them from participating in the affairs of electric cooperatives after this Court had directed them to tender their resignation by en banc resolution of January 8, 1987 reiterated in the resolution dated February 12, 1987 merits disciplinary action.

Respondent Judge Loreto Quinto who filed a conditional resignation is hereby reprimanded for failure to comply immediately with this Court’s directive.

Respondent Judge Agbu who obdurately refuses to comply with this Court’s resolutions to resign his position as director of ZAMSURECO is hereby suspended from his position as judge of the Ramon Magsaysay, Don Mariano Marcos and Midsalip Municipal Circuit Trial Court for a period of six (6) months.

Considering further that from January 13, 1987 when the respondents received this Court’s Resolution of January 8, 1987 directly addressed to them requiring them immediately to resign from their positions as directors of ZAMSURECO, this Court had made abundantly clear its firm policy inhibiting judges from sitting in the board of electric cooperatives, the respondent judges can not in good faith claim that they are entitled to the per diems, allowances and other benefits they drew as ZAMSURECO directors from that date. This Court therefore directs the respondent judges to make restitution of the amounts received from Zamsureco starting January 13, 1987.

SO ORDERED.

Teehankee, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Sarmiento and Cortes, JJ., concur.

Yap and Fernan, JJ., are on leave.

Bidin, J., I certify that Mr. Justice Bidin voted for and concurred in the above Resolution.

Endnotes:

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1. Administrative Matter No. 12691-MC, Re: Request of Judge Concepcion Salud for permission to act and sit as Director of Cagayan Electric Cooperative (CAGELCO): Minutes of en banc resolution. May 29, 1980, reiterated in Lapena v. Marcos. Administrative Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572 and in Administrative Matter No. 84-8-4156-MTC.

2. National Electrification Decree of August 6, 1973.

3. Acting on a telegram from Atty. Tecson, Chairman, Zamboanga del Sur Human Rights and Reconciliation Organization requesting disqualification of MTC Judges Agbu and Quinto, addressed to the Chief Justice and received on September 15, 1986.

4. Letters to the Chief Justice, dated February 9, 1987 and February 5, 1987, respectively.

5. Re: Letter-Protest against Judge Cesar Maravilla to sit and act as a Director of the Tablas Island Cooperative, Inc. (TIBLCO): Minutes of en banc resolution, August 30, 1984).