CA rules on preventive suspension, transfer of civil service employees charged administratively

Published January 6, 2021, 1:35 PM

by Rey Panaligan 

Can a civil service employee be transferred to another office and at the same time be preventively suspended while an administrative case against him or her is pending investigation?

(FLICKR / MANILA BULLETIN)

Or can the preventive suspension be done without giving the employee a chance to answer the administrative charge and without conducting a preliminary investigation on the complaint?

On both queries, the Court of Appeals (CA) answered: “No.”

The CA, in a decision released last month and written by Associate Justice Nina G. Antonio Valenzuela dismissed the petition filed by the Department of Agrarian Reform (DAR) which challenged the Civil Service Commission’s (CSC) ruling in favor of Rosalina B. Pabalan, a cashier II at the department’s central office since Sept. 24, 2001.

Case records showed that in 2016, the Commission on Audit (COA) based in DAR examined Pabalan’s cash and accounts as a disbursing officer.

In a demand letter dated July 4, 2016, COA directed Pabalan to produce P37,006.65 in missing funds and to submit her written explanation within 48 hours.  Pabalan submitted her explanation.

In another demand letter dated July 12, 2016, the COA wanted Pabalan to explain the missing P300,000 in outstanding cash advance. She submitted her explanation.

On July 20, 2016,  the COA found irregularities in Pabalan’s cash advance of P2.25 million.  She again gave her explanation.

On July 29, 2016, Pabalan was transferred to the personnel division and assumed her new post on Aug. 17, 2016.

In a demand letter dated Sept. 21, 2016, the DAR’s office of the auditor directed Pabalan to pay her unliquidated cash advances of P1.3 million.  She submitted her explanation on Oct. 3, 2016.  

On Oct. 17, 2016, Pabalan was formally charged with serious dishonesty, gross neglect of duty, and falsification of official documents.

Pabalan was preventively suspended for 90 days without pay in an order issued by DAR on Oct. 17, 2016.

She went to the CSC on Oct. 28, 2016  and appealed her preventive suspension.

She told the CSC she was denied due process when DAR did not conduct a preliminary investigation on the complaint filed against her.  DAR did not issue a show cause memorandum against her and there was no basis for preventive suspension since she had already been transferred to another office.

On Dec. 15, 2016, DAR issued a show cause order directing Pabalan to submit her counter-affidavit. On Dec. 23, 2016, DAR recalled the formal charge and the order of preventive suspension.

The CSC ruled in favor of Pabalan in a decision dated June 6, 2017. It declared “null and void” Pabalan’s preventive suspension for 90 days. It then directed DAR to pay her back salaries and other benefits during the period of her “unlawful preventive suspension.”

When DAR’s motion for reconsideration was denied by the CSC, it elevated the issue before the CA.

         In dismissing DAR’s petition, the CA said that the rules on preventive suspension or transfer to another office when a civil service employee is charged administratively are Sections 25 and 26 of Rule 7 of the Revised Rules on Administrative Cases in Civil Service (RRACCS).

Under Section 25, the CA said that “an employee under the Civil Service who has been administratively charged may be placed under preventive suspension so that the employee can be temporarily removed from the office while the investigation is being conducted.”

But it said that under Section 26, “in lieu of preventive suspension, the proper disciplining authority or head of office, may reassign the respondent to another unit of the agency during the formal hearings.”

Thus, the CA said, “petitioner DAR’s reassignment of the respondent Pabalan from the Cashier Division to the Personnel Division on 29 July 2016, precluded the preventive suspension on 17 October 2016.”

Also, the CA said that RRACCS provide the procedure in the issuance of preventive suspension orders.

It said that under RRACCS, the when the complainant is the disciplining authority, he or she must issue a show cause order to the employee; must require the employee to file a comment or counter-affidavit; must conduct preliminary investigation; must file a formal charge if a prima facie case is found after preliminary investigation; and the employee must file his answer.

But the CA said the procedure laid down in RRACCS was not followed by DAR when Pabalan was preventively suspended.

“Blatant is that on the date of the issuance of the Order of Preventive Suspension on 17 October 2016, the petitioner DAR had not conducted the preliminary investigation, and had not given the respondent Pabalan the chance to file an answer, as required under Rule 6, 2011 RRACCS,” it said.

“Clearly, the preventive suspension order was void, because it did not comply with the procedure in the 2011 RRACCS,” it said.

At the same time, the CA ruled that “the CSC did not err in awarding back salaries and other benefits in favor of the respondent Pabalan.”

It said that Pabalan “was entitled to back wages and other benefits during the period she was unlawfully preventively suspended (i.e.: from 22 October 2016 to 27 December 2016), because the order of preventive suspension was void for being issued without a valid formal charge.”

“ACCORDINGLY, we DISMISS the Petition for Review,” the CA ruled.

 
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