ROGELIO A. TRIA v. CHAIRMAN PATRICIA A. STO. TOMAS, CSC, RET.

leave of absence without pay without being considered separated from the
BRIG. GEN. JOSE T. ALMONTE, RET. COL. ERNESTO P. RAVINA and service.
RET. GEN. MIGUEL M. VILLAMOR o The application was approved by his immediate supervisor and Chief,
July 31. 1991 |Feliciano, J. Intelligence and Investigation Service, Col. Amistoso and the personnel
officer, Col. Rodriguez, both based in the Region 5 office of the FMIB.
SUMMARY: Tria was an employee of the EIIB as Management and Audit Analyst,  On 23 October 1986, when petitioner was already in Manila attending to the
a position described in his letter of appointment as “confidential.” He was dismissed processing of his travel papers, a Memorandum was sent to him in Legaspi City
on grounds of “loss of confidence” by the appointing authority on the basis of his from the FMIB Central Office in Quezon City by respondent Assistant FMIB
having gone on unauthorized leave of absence and of his having filed a confidential Commissioner Brig. Gen. Miguel Villamor (Ret.), referring to the confidential
report on one of his superiors directly with the Office of the President. CSC denied report sent out to the Office of the President. (See Notes)
Tria’s reinstatement and backwages. SC ruled in favor of Tria. Tria’s position was  Since petitioner had failed to receive and hence to respond to the above
not “highly confidential” or “primarily confidential” in nature, thus, it cannot be Memorandum, another Memorandum from Quezon City dated 17 November
based on loss of trust and confidence. Tria may only be removed “except for cause 1986 was issued, this time by respondent Col. Rabina, Chief, Administrative
provided by law” and due process must be observed. Substanital due process was not Service, FMIB, reminding petitioner of his duty to submit the required written
observed by EIIB since Tria’s absence was approved by his immediate supervisors explanation. (See Notes)
and the confidential report he filed directly with the Office of the President was done  Petitioner, however, had already left the country, and was unable to comply with
in good faith. the express directives of the second Memorandum. He was therefore considered
DOCTRINE: The effects of characterizing a position as “primarily confidential” are to be on absence without official leave (AWOL). This prolonged absence, as
two-fold: Firstly, such characterization renders inapplicable the ordinary requirement well as his failure to explain his sending out the confidential report to
of filling up a position in the Civil Service on the basis of merit and fitness as Malacañang, prompted respondent EIIB Commissioner Brig. Gen. Jose Almonte
determined by competitive examinations; and Secondly, while the 1987 Constitution to issue Letter Order informing Tria of the termination of his services retroactive
does not exempt such positions from the operation of the principle set out in Article to 1 November 1986 for continuous absence without official leave and for loss
IX (B), Section 2 (3) of the same Constitution that "no officer or employee of the of confidence.
Civil Service shall be removed or suspended except for cause provided by law," the  It was upon his return to the country sometime in May 1987 that petitioner came
"cause provided by law' includes "loss of confidence." to know of the abovementioned Letter-Order and of the two Memoranda. In a
letter dated 20 May 1987 to respondent Almonte, petitioner asked for
FACTS: reinstatement, stating that his application for vacation leave had been
 Rogelio A. Tria had been employed with the Bureau of Intelligence and approved by his immediate chief and the personnel officer. With respect to
Investigation (later renamed Finance Ministry Intelligence Bureau (FMIB), now the confidential report he had addressed to the Deputy Executive Secretary,
known as the Economic Intelligence and Investigation Bureau (EIIB)) of the petitioner explained:
Department of Finance, Region 5, Legaspi City, as a Management and Audit o “ I would like to state that the reason why I submitted my report to the Office of
Analyst I, a position expressly described in the letter of appointment as the President is precisely to protect the image of the bureau. Earlier, I handed a
“confidential.” The appointment was signed by “Pelagio A. Cruz, Lieutenant report to the then Deputy Commissioner Mendoza regarding said irregularities
General, AFP (Ret), Commissioner, FMIB.” committed sometime in 1984-85, particularly by Atty. Geronga, R-5 and
 On 27 September 1984, petitioner wrote a confidential report to the FMIB Director Col. Alfarce. No investigation was undertaken in spite of my report. In
Deputy Commissioner detailing the nonfeasance of a FMIB lawyer assigned to the meanwhile, the FMIB-R-5 always appeared in the local newspaper
regarding the unscrupulous behavior of the director which not only affects the
Region 5. Petitioner's report recommended the lawyer's replacement "with a
good image of our organization but also of the subordinates of the office. Thus,
competent and able lawyer to handle the cases brought to his attention." I felt in good faith that the matter sho.uld be brought to the attention of the
 On 14 October 1986, petitioner submitted another confidential report, addressed Deputy Executive Secretary of Malacañang so that appropriate action can be
to the Deputy Executive Secretary, Office of the President, this time concerning taken for the good of the service. I submit that I did this in my honest belief that
Col. Jackson P. Alparce (Ret.), FMIB Region 5 Director. it is my duty to do so as a public servant and a loyal member of this
 On 20 October 1986, petitioner filed an application for vacation leave for 100 organization. I reiterate that the same was done in good faith and not for any
working days, covering the period 1 November 1986 to 30 April 1987. selfish motive.”
Petitioner sought to take advantage of a Civil Service Circular which allows  Reinstatement was, however, denied by respondent Rabina in a letter: “Be
employees who propose to seek interim employment abroad, to go on prolonged informed that Commissioner, EIIB has directed the Investigation & Prosecution
 Office this bureau to conduct a brief investigation on your case and the Service shall be removed or suspended except for cause provided by
established facts show that this office committed no injustice. Your violation of law," the "cause provided by law' includes "loss of confidence."
office rules and regulations were the grounds for your termination for loss of  It is said to be a settled rule that those holding primarily confidential positions
confidence.” "continue for so long as confidence in them endures. Their termination can be
 His request for payment of the cash equivalent of his accrued leave credits (179 justified on the ground of loss of confidence because in that case their cessation
days) was also denied by Villamor on the ground that: “Section 6 of the Civil from office involves no removal but the expiration of their term of office."
Service rules and laws provides that the removal for cause of an official or  Notwithstanding the refined distinction between removal from office and
employee shall carry with it forfeiture of other benefits arising from his expiration of the term of a public officer, the net result is loss of tenure upon loss
employment.'" of confidence on the part of the appointing power.
 Petitioner then filed a petition for review with prayer for reinstatement and  A position in the Civil Service may be considered primarily confidential:
backwages before CSC. (1) when the President of the Philippines, upon recommendation of the Civil
 CSC: Denied. Tria’s application for vacation leave, notwithstanding the Service Commission, has declared that position to be primarily confidential;
accumulation of sufficient leave credits, was discretionary on the part of or
respondent Rabina, the approving official, citing In re: Nicolasura, Victor (CSC (2) when the position, given the character of the duties and functions attached
Res. No. 88-251) dated 25 May 1988 and Section 20 of the Revised Civil to it, is primarily confidential in nature.
Service Rules which read: "Leave of absence for any reason other than the  All positions in the EIIB were apparently declared as "highly confidential" by
serious illness of an officer or employee must be contingent upon the needs of former President Marcos.
the service."  When one examines, however, the actual duties and functions of petitioner as a
"Management and Audit Analyst I" in the FMIB, as set out in the job description
RULING: WHEREFORE, the Petition for Certiorari is hereby GRANTED DUE of that position, one is struck by the ordinary and day to day character of such
COURSE, the Comments filed by respondents are hereby CONSIDERED as their duties and functions (See Notes)
Answers to the Petition and Resolutions Nos. 88-150 and 88-787 of public  Piñero v. Hechanova (J.B.L. Reyes, J.): “It is plain that, at least since the
respondent Civil Service Commission as well as Letter-Order No. 06-87 of public enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the
respondent EIIB Commissioner, are hereby ANNULLED and SET ASIDE. Public position which finally determines whether a position is primarily confidential,
respondents are hereby ORDERED to reinstate forthwith petitioner to his former policy determining or highly technical. Executive pronouncements can be no
position, or to a position of equivalent rank and compensation, and to pay him the more than initial determinations that are not conclusive in case of conflict. And
backwages, allowances and other benefits lawfully due him counted from May 1987, it must be so, or else it would then lie within the discretion of the Chief
when he returned to the country from his leave of absence, until actual reinstatement, Executive to deny to any officer, by executive fiat, the protection of section 4,
less one month's backwages. No costs. Article XII, of the Constitution.”
 De los Santos v. Mallare (J. Tuason): “Three specified classes of positions —
Whether Tria’s dismissal was proper – NO policy-determining, primarily confidential and highly technical — are excluded
Whether an employee holding a position considered as "primarily confidential" from the merit system and dismissal at pleasure of officers and employees
may be dismissed on grounds of "loss of confidence" by the appointing appointed therein is allowed by the Constitution. These positions involve the
authority on the basis of the employee's having gone on unauthorized leave of highest degree of confidence, or are closely bound up with and dependent on
absence and of his having filed a confidential report on one of his superiors other positions to which they are subordinate, or are temporary in nature. It may
directly with the Office of the President - NO truly be said that the good of the service itself demands that appointments
 We begin with the proposition that the effects of characterizing a position as coming under this category be terminable at the will of the officer that makes
“primarily confidential” are two-fold: them. Every appointment implies confidence, but much more than ordinary
o Firstly, such characterization renders inapplicable the ordinary confidence is reposed in the occupant of a position that is primarily confidential.
requirement of filling up a position in the Civil Service on the basis of The latter phrase denotes not only confidence in the aptitude of the appointee for
merit and fitness as determined by competitive examinations; and the duties of the office but primarily close intimacy which insures freedom of
o Secondly, while the 1987 Constitution does not exempt such positions [discussion and delegation and reporting] without embarrassment or freedom
from the operation of the principle set out in Article IX (B), Section 2 from misgivings of betrayals of personal trust or confidential matters of state…”
(3) of the same Constitution that "no officer or employee of the Civil  The positions which this Court has in the past characterized as "primarily
confidential" include: private secretaries of public functionaries; a security
 officer assigned as bodyguard of the person of a public officer and responsible  Substantive due process requires, among other things, that an officer or
for taking security measures for the safety of such official; City Legal Officer of employee of the Civil Service be suspended or dismissed only "for cause," a
Davao City vis-à-vis the Davao City Mayor; Provincial Attorney of Iloilo phrase which, so far as concerns dismissals of public officers not holding
Province vis-à-vis the Governor of Iloilo Province. positions which are "policy determining, highly technical or primarily
 It is also instructive to refer to some of the positions which the Court has refused confidential," has acquired, according to this Court, the following "well-defined
to designate as “primarily confidential:” e.g., members of the Customs Police concept." "It means for reasons which the law and sound policy recognize as
Force or Port Patrol; Special Assistant to the Governor of the Central Bank, in sufficient warrant for removal, that is, legal cause, and not merely causes which
charge of the Export Department; Senior Executive Assistant, Clerk I and the appointing power in the exercise of discretion may deem sufficient. It is
Supervising Clerk I and stenographer in the Office of the President. implied that officers may not be removed at the mere will of those vested with
 It is evident that the duties of petitioner related to the study and analysis of the power of removal, or without cause. Moreover, the cause must relate to and
organizational structures and procedures, with the end in view of making effect the administration of the office, and must be restricted to something of a
recommendations designed to increase the levels of efficiency and coordination substantial nature directly affecting the rights and interests of the public.” –
within the organization so analyzed. Moreover, the modest rank and fungible NOT COMPLIED WITH
nature of the position occupied by petitioner, is underscored by the fact that the  AS APPLIED: In the instant case, we have noted earlier that petitioner was
salary attached to it was no more than P1,500/month at the time he went on charged with violation of official rules and regulations consisting more
leave (October, 1986). There thus appears nothing to suggest that specifically, of: (1) having gone on an extended unauthorized leave of absence;
petitioner's position was "highly" or even "primarily confidential" in (2) having bypassed official channels in transmitting a report concerning alleged
nature. misfeasance or non-feasance on the part of a superior officer of the EIIB directly
 The fact that petitioner may, sometimes, handle "confidential matters" or papers to the Office of the President through the Deputy Executive Secretary, rather
which are confidential in nature, does not suffice to characterize their positions than through the respondent EIIB Commissioner.
as primarily confidential. o Tria’s application for leave without pay had been approved or indorsed
 Accordingly, we believe and so hold that petitioner Tria's particular position of for approval by his immediate superior in the FMIB, Region 5 Office,
"Management and Audit Analyst I" is not a "primarily confidential" position so where Tria was assigned, and so Tria was not completely without basis
as to render him removable upon, or the expiration of his term of office in believing that the formal approval of his application in the FMIB
concurrent with, "loss of confidence" on the part of the appointing power who, Central Office would follow as a matter of course.
as already noted, was the then Commissioner of the FMIB. o Tria’s immediate superiors in the Region 5, FMIB Office were the
 If petitioner Tria was not legally removable upon "loss of confidence" on the persons in the best position to ascertain whether his presence in the
part of the FMIB Commissioner, was there nonetheless legal cause provided by Regional office during the period covered by his application for leave
law for his dismissal from the service? without pay was really demanded by imperious exigencies of the
 We believe that the constitutional prohibition against suspension or dismissal of service. The record is bare of any indication what those exigencies
an officer or employee of the Civil Service "except for cause provided by law" is were, at that particular time.
a guaranty of both procedural and substantive due process. o There is also no showing that the FMIB actually suffered any prejudice
 Procedural due process requires that suspension or dismissal come, as a by reason of the non-availability of the services of petitioner during his
general rule, only after notice and hearing. – COMPLIED WITH leave without pay. Petitioner was, it should be recalled, a "Management
 AS APPLIED: The EIIB issued a Memorandum to petitioner, after he was and Audit Analyst I," a humble rank separated by many ranks from the
already in Manila, requiring him to explain why no disciplinary action should be appointing power, the FMIB Commissioner.
taken against him for having submitted a report directly to the Office of the  It thus appears to the Court that, on balance, the extreme penalty of dismissal
President, Malacañang, "which adversely affected the bureau's image and placed from the service was unduly harsh in the case of petitioner; that suspension for
the Commissioner in an embarrassing position," which Memorandum was not thirty (30) days would have been more than adequate punishment for
received by petitioner. However, after his return from abroad and upon request precipitately going on leave without pay prior to formal approval of his leave by
of petitioner, another investigation was conducted by the EIIB where petitioner the Central Office of the FMIB; and that the real and efficient cause of his
had an opportunity to explain his side of the matter. The Court considers that, dismissal from the service was the fact that he had bypassed official channels in
under the circumstances of this case the subsequent investigation constituted rendering the confidential report addressed to the Deputy Executive Secretary,
substantial compliance with the demands of procedural due process. Office of the President, concerning the then Regional Director of FMIB, Region
5.
 After careful consideration, we believe and so hold that, in the rolls of FMIB for prolonged unauthorized absence and non-compliance with
circumstances of thus case, that act of petitioner did not constitute lawful office rules and regulations."
cause for his dismissal from the service.  Duties and Functions of Management and Audit Analyst I:
 In the case at bar, we note that petitioner sent his confidential (and presumably o Prepares required survey materials, work plans and schedules gathers
sealed) report to an office having overall administrative supervision and control data and makes investigations and analyzes (sic) of administrative
over the FMIB (i.e., the Office of the President); the report was not, in other problems relating to organization, personnel and procedure;
words, sent either to the media or to an office or agency having no supplements data gathered by interviewing heads of office or private
administrative jurisdiction over the public official or office complained of. That individuals or by observing actual operations; examines and analyzes
report was a privileged communication and the author thereof enjoys the benefit reorganization proposals in the light gathered and facts observed;
of the presumption that he acted in good faith. The respondents have not alleged analyzes causes of inefficiency or lack of economy, undertakes required
that petitioner acted with malice in fact. We do not believe that petitioner's act study and research; prepares survey reports and write (sic) drafts of
constituted serious misconduct but rather, on the contrary, was an act of personal tentative organization plans, discusses and justifies such plans to
and civic courage by which petitioner exhibited his loyalty to the FMIB as an supervisor and appropriate bodies; maintains close liaison work with
institution and ultimately to the Government of the Republic of the Philippines. head of offices or organizations; studies operational methods and
 Considerations of fundamental public policy thus compel us to hold that procedures of the organization to simplify the work and improve
petitioner was dismissed without lawful cause and must, therefore, be efficiency, studies and recommends measures to insure industrial safety
reinstated to the position he previously held or, if that position is no longer and prevention of accidents; supervises the installation of management
available, to some other position in the EIIB of equivalent rank and control devices; assists in the compilation, analysis and interpretation of
emoluments. important statistics for use of management."
 In addition, petitioner is entitled to payment of his backwages (basic salary plus 
allowances, if any) computed from the time of his return from his leave of
absence, minus an amount equivalent to one month's backwages representing the
appropriate penalty for petitioner's infraction of ordinary office rules.

NOTES:
 First Memorandum:
“Be reminded that as an agent of FMIB, it is inherent in your duties to report to
the Commissioner or other authorities of FMIB of any irregularity committed by
employees/officials in that Region [5] to enable them to take appropriate action
investigation and/or disciplinary action.
However, it appears that you opted to submit said report directly to the Office of
the President, Malacañang which adversely affected the Bureau's image and
placed the Commissioner in an embarrassing position
In view thereof, you are required to submit your explanation in writing within
five (5) working days from receipt thereof why no disciplinary action should be
taken against you for non-compliance with office rules and regulations.”
 Second Memorandum:
"Be informed further that your application for sick [should have been vacation]
leave dated October 22, 1986 . . . has been disapproved pursuant to Sec. 16 of
Civil Service Rule No. XVI which reads thus: 'Leave of absence for any reason
other than serious illness must be contingent upon the needs of the service.'
Inasmuch as your services in that Region [5] is (sic) needed, you are directed to
report for work thereat within ten (10) working days from the date of this
Memorandum otherwise, this office will be constrained to drop you from the