G.R. No. 138238.
September 2, 2003 grave misconduct, gross neglect of duty,
gross violation of the Civil Service Law and
EDUARDO Rules of Reasonable Office Regulations,
BALITAOSAN,, Petitioner, v. THE refusal to perform official duty, gross
SECRETARY OF EDUCATION, CULTURE AND insubordination, conduct prejudicial to the
SPORTS, respondent. best interests of the service and absence
without leave.
DECISION
Petitioner failed to give his explanation on
CORONA, J.: the charges against him despite due notice.
Thus, he was meted preventive suspension
Before us is a petition for review of the April
for 90 days and consequently dismissed
15, 1999 resolution1 of the Court of Appeals
from the service in a DECS decision dated
denying petitioners motion for partial
November 29, 1990.
reconsideration of its decision dated
November 9, 1998 which ordered petitioners Petitioner appealed said decision to the
reinstatement, without backwages. Merit System Protection Board but his
appeal was dismissed for being filed out of
Petitioner was among the public school
time.
teachers who were dismissed by then DECS
Secretary Isidro Cario for ignoring the return Aggrieved, petitioner appealed to the Civil
to work order while participating in the Service Commission but the appeal and the
teachers mass strike at Liwasang Bonifacio subsequent motion for reconsideration were
from September to October, 1990. both denied in the resolutions dated
September 8, 1994 and April 14, 1998,
Records reveal that an administrative
respectively.
complaint was filed against petitioner,
together with a certain Dalangin Sarmiento Petitioner then sought recourse from the
and Filomeno Rafer, charging them with Court of Appeals via a petition
for certiorari which yielded positive results, reconsideration, praying for an award of
obtaining for petitioner an order of backwages, but the same was denied in the
reinstatement without, however, any award above assailed resolution dated April 15,
of backwages in his favor. Thus: 1999.
WHEREFORE, the petition is hereby given Thus, the instant petition.
DUE COURSE. Resolution Nos. 94-4979 and
980819 of the Civil Service Commission are Petitioner alleges that the Court of Appeals
SET ASIDE. Accordingly, the Department of committed reversible error when it refused
Education, Culture and Sports Decision in to apply the ruling in the case of Fabella, et
Case No. DECS 90-118 is MODIFIED instead al. vs. Court of Appeals, et al.3 In the said
the petitioner is only guilty of Conduct case, the Court, finding the investigation
Prejudicial to the Best Interest of the committee to be without competent
Service for which he is meted out the jurisdiction, declared that all proceedings
penalty of suspension from the service for a undertaken were necessarily void and thus
period of six (6) months without pay could not provide the legal basis for the
considering that the petitioner has been out suspension or dismissal of the petitioners.
of the service for more than seven (7) years The Court declared a denial of due process
now as a result of his dismissal from the because the inclusion of a representative of
service, the Department of Education, a teachers organization in the investigating
Culture and Sports is hereby ORDERED to committee, which was indispensable to
immediately reinstate petitioner Eduardo ensure an impartial tribunal, was not
Balitaosan. complied with. Consequently, it ordered the
payment of back salaries, allowances,
SO ORDERED.2 cr älä wvirt u alib räry bonuses and other benefits and emoluments
which had accrued to the teachers involved
Not wholly satisfied with said decision, during the entire period of their preventive
petitioner moved for its partial
suspension and/or dismissal from the Issues raised for the first time on appeal
service. cannot be considered because a party is not
permitted to change his theory on appeal.
Petitioners reliance on Fabella is totally To allow him to do so is unfair to the other
misplaced. party and offensive to the rules of fair play,
justice and due process.4
As aptly observed by the Court of Appeals,
crälä wv irt u alib räry
in Fabella, the jurisdiction and composition In its Decision, the Court of Appeals justified
of the investigation committee was put in petitioners reinstatement:
issue from the very start. When the Court
found the investigation committee to be While We view with approbation the
without competent jurisdiction, it declared authority of the Department of Education,
all the proceedings undertaken by said Culture and Sports to punish the public
committee void; therefore, it could not have school teachers for engaging in the
provided the legal basis for the suspension prohibited action, that is, staging and
and dismissal of private respondents joining the strike, We, particularly, take note
therein. here the seemingly compartmentalized
treatment the petitioner suffered from the
In the case at bar, however, aside from the respondent Civil Service Commission. As
catch-all and sweeping allegation of denial petitioners appeal to the Merit Systems
of due process, petitioner never questioned Protection Board of the Civil Service
the competence and composition of the Commission was rebuffed for having been
investigating committee. He belatedly raised filed out of time and eventually dismissed
this issue for the first time in the petition for petitioner, that of Filomeno Rafers, after
review before the Court of Appeals. Thus, filing a third motion for reconsideration from
the appellate court acted correctly in the resolution of the respondent commission
rejecting petitioners argument. dismissing him from the service, decided
Rafers case on the merits and reduced his
penalty from dismissal from the service to Since petitioner did not render any service
suspension for six (6) months (Rollo, p. 29). during the period for which he is now
We are bewildered actually, as Our claiming his salaries, there is no legal or
assessment is that the petitioner and Rafer equitable basis to order the payment
are similarly situated, why the respondent thereof.6
crä läw virt u alib räry
Commission failed to give the same
cordiality given to Rafer. Not only that, in WHEREFORE, the petition is hereby
several cases involving public school DENIED. The Resolution of the Court of
teachers, the respondent Commission Appeals dated April 15, 1999 denying
modified the penalty of dismissal from the petitioners claim for backwages is
service to a mere reprimand (Alipat vs. Civil AFFIRMED.
Service Commission, CA-G.R. SP No.
38312).5 SO ORDERED.
The fact is that petitioner participated in the
mass action which in turn resulted in the
filing of charges against him and his
subsequent dismissal later on. His
reinstatement was not the result of
exoneration but an act of liberality by the
Court of Appeals. Accordingly, petitioners
claim for backwages for the period during
which he was not allowed to work must be
denied.
The general rule is that a public official is
not entitled to any compensation if he has
not rendered any service. No work, no pay.
