Nera vs. Garcia

Preventive suspension pending administrative investigation is not a penalty, and a civil service officer or employee may be preventively suspended and removed for dishonesty, oppression, or grave misconduct even when the acts were not committed in the performance of official duty, the qualifying phrase "in the performance of duty" under Section 694 of the Revised Administrative Code applying only to "grave misconduct or neglect."

Bienvenido Nera was a civil service eligible serving as clerk in the Maternity and Children's Hospital, a government institution under the Bureau of Hospitals and the Department of Health. He also served as manager and cashier of the Maternity Employer's Cooperative Association, Inc., an association composed of hospital employees. The governing framework for removal and preventive suspension of subordinate civil service personnel was Section 694 of the Revised Administrative Code, later clarified by Section 34 of Republic Act No. 2260.

Bienvenido Nera, a civil service eligible, was serving as clerk in the Maternity and Children's Hospital when the controversy arose. In the course of his employment he also acted as manager and cashier of the Maternity Employer's Cooperative Association, Inc., and as such had under his control funds of the association. On May 11, 1956, he was charged before the Court of First Instance of Manila with malversation in Criminal Case No. 35447 for allegedly misappropriating P12,636.21 belonging to the association.

Some months after the filing of the criminal case, Simplicio Balcos, husband of the suspended administrative officer and cashier Gregoria Balcos, filed an administrative complaint against Nera. Acting upon that complaint and on the basis of the information in the criminal case, as well as Nera's liability as manager and cashier for P12,636.21, Executive Officer Antonio Rodriguez, acting for and in the absence of the Director of Hospitals, required Nera in a communication, Exhibit D, to show cause within seventy-two hours why he should not be summarily dismissed for acts involving dishonesty. The period was extended to December 20, 1956. Before its expiration, on December 19, 1956, Nera received a communication from the Director of Hospitals suspending him from office as clerk effective upon receipt, with the approval of Secretary of Health Paulino Garcia.

Thereafter Nera asked the Presidential Complaints and Action Commission to intervene, which recommended lifting the suspension. Respondents did not follow the recommendation, and Nera's request for reconsideration was denied. He then filed a special action of prohibition, certiorari and mandamus to restrain respondents from proceeding with the administrative case until termination of the criminal case, to annul the December 19, 1956 suspension order, and to compel lifting of the suspension. The trial court found the suspension illegal for having preceded his answer and for involving alleged misconduct unconnected with his duties as hospital clerk.

• Deferment of Administrative Case: Petitioner sought to restrain respondents from proceeding with the administrative case against him until after termination of the criminal case.
• Annulment of Suspension and Reinstatement: Petitioner sought annulment of the suspension order dated December 19, 1956 and an order compelling respondents to lift the suspension and reinstate him with back salary.

• Preventive Character of Suspension: Respondents maintained that the suspension was not punishment for dishonesty but only a preliminary preventive measure pending investigation, and therefore was not improper even if ordered before the charges were heard.
• Dishonesty Unrelated to Official Duty: Respondents maintained that dishonesty warranted suspension and removal even without connection to clerical duties, the Solicitor General arguing that private life cannot be segregated from public life and that dishonesty reflects on fitness to continue in office and on the discipline and morals of the service.

• Timing of Preventive Suspension: Whether preventive suspension ordered before the respondent files his answer to the administrative complaint violates due process as punishment without hearing.
• Nexus to Official Duty: Whether dishonesty or misconduct must have been committed in connection with or in the performance of official duty to warrant preventive suspension and removal under Section 694 of the Revised Administrative Code.

• Timing of Preventive Suspension: No. Suspension pending investigation is a preliminary preventive measure, not the penalty of removal or dismissal, and ordering it before hearing is not improper.
• Nexus to Official Duty: No. Under Section 694, only grave misconduct or neglect is qualified by in the performance of duty; dishonesty and oppression warrant suspension or removal even without relation to official duty.

• Timing of Preventive Suspension: Suspension is a preliminary step in an administrative investigation, while removal or dismissal after investigation and a finding of guilt is the penalty. Because the December 19, 1956 order merely held Nera out of office pending inquiry into the dishonesty charge, it was not punishment imposed without opportunity to prove innocence and did not violate due process.
• Nexus to Official Duty: The comma after dishonesty and oppression in the second paragraph of Section 694 shows that in the performance of duty qualifies only grave misconduct or neglect. Section 34 of Republic Act No. 2260 confirms this by placing a comma after grave misconduct so that in the performance of duty or neglect qualifies only neglect. A dishonest official cannot be tolerated in government service even if duties are correctly performed, given ampler opportunity to commit dishonesty and the influence that makes victims less able to resist. The alleged misappropriation was also not entirely disconnected from office, since Nera became manager and cashier because he was a hospital employee and the association was composed of hospital employees. The elective-official cases relied upon, Mondano vs. Silvosa and Lacson vs. Roque, were distinguished as governed by other laws and as involving officials directly responsible to the electorate with short definite terms, who ordinarily may not be summarily suspended unless the irregularity connects with office.

• Preventive suspension distinguished from penalty — Suspension pending administrative investigation is merely a preliminary protective measure to hold the respondent out of office while charges are inquired into; removal or dismissal after establishment of guilt is the penalty. Applied here, ordering suspension before Nera answered did not constitute punishment without hearing.
• Dishonesty as ground for civil service removal independent of official duty — Under Section 694 of the Revised Administrative Code, as clarified by Section 34 of Republic Act No. 2260, dishonesty, oppression, or grave misconduct need have no relation to performance of duty, while only neglect must be in the performance of duty. Applied here, alleged misappropriation of cooperative funds supported preventive suspension although committed as association manager and cashier rather than as hospital clerk.
• Distinction between appointive and elective officers on suspension — Appointive civil service personnel are subject to official-conduct rules permitting preventive suspension for dishonesty wherever committed, whereas elective officers, responsible to the electorate and serving short definite terms under different laws, are ordinarily not suspended unless the irregularity connects with office or suspension is necessary to prevent further injury. Applied here, Mondano vs. Silvosa and Lacson vs. Roque did not control.

• "Suspension is a preliminary step in an administrative investigation." — States the controlling characterization that separates preventive suspension from the penalty of removal, supporting the rejection of the due process objection.
• "There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and he given an opportunity to prove his innocence." — Articulates the ratio that pre-answer preventive suspension is permissible because guilt is determined only after investigation.
• "The Government cannot well tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the Government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations." — Provides the policy justification for holding that dishonesty need not relate to official duty to warrant exclusion from civil service.

• Mondano vs. Silvosa, 97 Phil. 143 — Cited by the trial court to require connection between irregularity and office; distinguished as involving an elective official governed by different suspension laws.
• Lacson vs. Roque, 92 Phil. 456 — Cited by the trial court for the same connection requirement; distinguished on the same ground that elective officers stand on different footing from appointive employees.

• Section 694, Revised Administrative Code — Provides that no civil service officer or employee shall be removed or suspended except for cause as provided by law, and authorizes preventive suspension with department approval if the charge involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty. Construed to require duty-connection only for grave misconduct or neglect, thus sustaining Nera's suspension for dishonesty.
• Section 34, Republic Act No. 2260 (Civil Service Act of 1959) — Provides for preventive suspension if the charge involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there is strong reason to believe respondent is guilty of charges warranting removal. Used as clarificatory aid confirming that dishonesty, oppression, and grave misconduct need no relation to duty.

Paras, Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia, Barrera and Gutierrez David, JJ., concur.