c. Dismissal, Preventive Suspension, Reinstatement

H. Liabilities of Public Officers

• Preventive Suspension and Back Salaries
• Illegal Dismissal, Reinstatement, and Back Salaries

Rule on Security of Tenure

No officer or employee of the civil service shall be removed or suspended except for cause provided by law (PHIL. CONST. art. IX-B, § 2, ¶ 3). Security of tenure is available even to positions which are considered highly technical, policy-determining and primarily confidential.

Dismissal of Appeal in Criminal Cases Due to Jumping of Bail

The Court of Appeals/Supreme Court may, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant:

• If appellant escapes from prison or confinement;
• If appellant jumps bail; or
• If appellant flees to another country during the pendency of the appeal (ROC, Rule 124, § 8; Rule 125, § 1)

Is preventive suspension considered an interruption of a term?

Preventive suspension is not considered “interruption” of a term under Sec. 8, Art. X and Sec. 43 (b) of R.A. No. 7160. A preventive suspension cannot simply be considered an interruption because the suspended official continues to stay in office although barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended official’s continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists (Aldovino v. COMELEC, G.R. No. 184836, Dec. 23, 2009).

Authority of Sandiganbayan to Suspend

A Congressman can be preventively suspended by the Sandiganbayan for violation of Anti-Graft Law notwithstanding the exclusive power of Congress to discipline its members.

The suspension contemplated in Article VI, Section 16(3) of the Constitution is a punishment that is imposed by the Senate or House of Representatives upon an erring member. It is distinct from the suspension under Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a penalty but a preventive measure. Since Section 13 of the Act does not state that the public officer must be suspended only in the office where he is alleged to have committed the acts which he has been charged, it applies to any office which he may be holding (Santiago v. Sandiganbayan, G.R. No. 128055, April 18, 2001).

DISMISSAL, PREVENTIVE SUSPENSION, REINSTATEMENT AND BACK SALARIES

PREVENTIVE SUSPENSION

Preventive suspension is a measure, not a penalty. Under Sec. 13 of R.A. No. 3019, it is mandatory during a pending criminal prosecution under a valid information; preventive suspension may also arise in an administrative investigation under its applicable rules. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. In a separate administrative investigation, if the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then, as a penalty, he is suspended, removed or dismissed. (Villasenor v. Sandiganbayan, G.R. No. 180700, 2008)

Two kinds of preventive suspension of government employees charged with offenses punishable by removal or suspension:

• Preventive suspension pending investigation; and
• Preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated.

Effect of Decision on Suspension When Made Before or After 90 Days:

The following 90-day periods apply to preventive suspension under the applicable civil-service rule, not to every preventive-suspension proceeding.

Note: Under the applicable civil-service rule, preventive suspension pending administrative investigation is generally limited to 90 days, subject to its exceptions. The governing statute must be checked for other proceedings; for example, Section 24 of R.A. No. 6770 provides a period of not more than six months, subject to its stated exception.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation; the purpose thereof is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. (Ombudsman v. Francisco, G.R. 172553, 2011)

It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public official against whom a valid information charging violation of that law or the Revised Penal Code provisions on bribery is filed. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continuing committing malfeasance in office. (Villasenor v. Sandiganbayan, G.R. 180700, 2008)

There is no dispute as to the power of the Ombudsman to place a public officer charged with an administrative offense under preventive suspension. That power is clearly confined under Section 24 of R.A. No. 6770. The law sets forth two conditions that must be satisfied to justify the issuance of an order of preventive suspension pending an investigation, to wit:

• The evidence of guilt is strong; and
• Either the following circumstance co-existing with the first requirement:
• The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;
• The charge would warrant removal from the service; or
• The respondent’s continued stay in office may prejudice the case filed against him. (Ombudsman v. Valeroso, G.R. 167828, 2007)

Prior notice and hearing are not required in the issuance of a preventive suspension order.

Settled is the rule that prior notice and hearing are not required in the issuance of a preventive suspension order. (Carabeo v. CA, G.R. 178000/178003, 2009)

GROUNDS FOR PREVENTIVE SUSPENSION OF POLICE OFFICERS [RA 8551, SEC. 55] (Preventive Suspension Pending Criminal Case)

The court shall immediately suspend the accused from office for a period not exceeding 90 days from arraignment:

• Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP;
• For grave felonies where the penalty imposed by law is 6 years and 1 day or more.

Exception: If it can be shown by evidence that the accused is harassing the complainant and/or witnesses, the court may order the preventive suspension of the accused PNP member even if the charge is punishable by a penalty lower than 6 years and 1 day.

General Rule: The period of preventive suspension shall not be more than 90 days.

Exception: If the delay in the disposition of the case is due to the fault, negligence or petitions of the respondent.

The preventive suspension may be sooner lifted by the court in the exigency of the service upon recommendation of the chief, PNP. Such case shall be subject to continuous trial and shall be terminated within 90 days from arraignment of the accused.

Back salaries during preventive suspension

General Rule: A public official is not entitled to any compensation if he has not rendered any service. (Reyes v. Hernandez, G.R. No. L-47346, April 8, 1941)

Updated: An employee whose reorganization-based termination is invalidated may recover backwages despite not having worked during the unlawful separation (National Power Corporation v. Cabanag, G.R. No. 194529, 6 August 2019).

Two conditions before an employee may be entitled to back salaries in preventive suspension cases:

• The offense the employee was found guilty of must stem from an act different from that originally charged; and
• The offense actually committed must not merit dismissal or suspension for more than one month. (CSC v. Cruz, G.R. No. 187858, July 30, 2012)

Preventive suspension pending investigation is distinct from preventive suspension pending appeal. Back salaries for the period of preventive suspension pending appeal may be awarded upon exoneration, including relative exoneration when the two conditions above are met; they are not awarded for the period of preventive suspension pending investigation under the rule in CSC v. Cruz. Sec. 35, RA 2260 provides for restoration to the position with full pay for the period of suspension if the employee is exonerated. (CSC v. Cruz, G.R. No. 187858, July 30, 2012).

The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if he was not exonerated of the charge against him. If the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser penalty remains the same. (CSC v. Cruz, G.R. No. 187858, July 30, 2012).

Preventive Suspension Pending Investigation v. Appeal

Reinstatement

The issuance of an appointment to a person who has been previously appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, or to the restoration of one who has been exonerated of the administrative charges filed against him. (Galang v. Land Bank, G.R. 175276, 2011)

The rule is settled that back salaries may be awarded to civil servants only if they have been illegally dismissed and thenceforth ordered reinstated, or to those acquitted of the charge against them. (Tanjay Water District v. Quinit, Jr., G.R. 160502, 2007)

When an official or employee was illegally dismissed and his reinstatement has later been ordered, for all legal purposes he is considered as not having left his office. Therefore, he is entitled to all the rights and privileges that accrue to him by virtue of the office he held. (Galang v. Land Bank, G.R. 175276, 2011)

A public officer is not entitled to reinstatement and back salaries, when removal or suspension is lawful. The denial of salary to an employee during the period of his suspension, if he should later be found guilty, is proper because he had given ground for his suspension. It does not impair his constitutional rights because the Constitution itself allows suspension for cause as provided by law and the law provides that an employee may be suspended pending an investigation or by way of penalty. (Bangalisan v. CA, G.R. 124678, 1997)

Where Sec. 13 of RA 3019 applies, a public officer acquitted of the criminal charge is entitled to reinstatement and to the salaries and benefits lost during suspension, unless administrative proceedings have meanwhile been filed against him. (RA 3019, Sec. 13)

Reinstatement v. Backwages:

Where to file claims for backwages: A claim for back salaries arising from illegal dismissal may be adjudicated in the reinstatement case. Claims for payment against government funds remain subject to applicable COA rules.

Amount of Back Salaries

An illegally terminated civil service employee is entitled to back salaries limited only to a maximum period of five years, and not full back salaries from his illegal termination up to his reinstatement. (Galang v. Land Bank, G.R. 175276, 2011)

Jurisdiction

Preventive Suspension

Preventive Suspension - merely a protective or preliminary measure; not a penalty and not considered part of the actual penalty if found guilty.

Purpose: to prevent the accused from using his position and powers/prerogatives to influence potential witnesses or tamper with records that may be vital in the prosecution of the case against him.

Duration

• Single preventive suspension should not exceed 60 days.
• If several administrative cases are filed against an elective official, he cannot be preventively suspended for more than 90 days within a single year on the same ground/s existing and known at the time of the first suspension.

For an elective local official, the disciplinary penalty of suspension—not preventive suspension—shall not extend beyond the unexpired term or six months for every administrative offense (RA 7160, Sec. 66).

• Penalty is not a bar to the candidacy of the respondent suspended as long as he meets the qualifications for the office. However, removal as a result of administrative investigation serves as a bar to the candidacy of the respondent for any elective position.
• Preventive suspension imposed upon a public office facing administrative charges cannot be credited against the penalty of suspension imposed upon him.
• Preventive suspension is not a penalty. Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. (Quimbo v. Gervacio, G.R. 155620, 2008)