SECOND DIVISION
Agenda
of
Item
No. 237
G.R. No. 166570 –
EFREN M. HERRERA and ESTHER C. GALVEZ, for and on their behalf and on behalf of
OTHER SEPARATED, UNREHIRED and RETIRED EMPLOYEES OF THE NATIONAL POWER
CORPORATION, Petitioners -versus- NATIONAL POWER CORPORATION, THE
DEPARTMENT OF BUDGET AND MANAGEMENT, and THE OFFICE OF THE SOLICITOR GENERAL, Respondents.
Promulgated:
December 18, 2009
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SEPARATE CONCURRING OPINION
BRION, J.:
I concur fully with the
ponencia that the petitioners are not
entitled to receive retirement benefits under Commonwealth Act No. 186 as
amended by Republic Act No. 660 and Republic Act No. 1616 (CA 186 as amended) over and above the superior separation package (separation pay) they have received under
Section 63 of Republic Act No. 9136 (RA
9136).[1] I submit this Separate Concurring Opinion to
state my own views and observations on the issues at hand.
I base my concurrence with
the ponencia’s conclusions on the
following grounds:
a) There is only one act of exit from
the service and only one service to exit from.
The petitioners who chose separation from the
service under the NPC’s restructuring plan never really exercised the right to optionally
retire; the earlier termination of their employment denied them the opportunity
to optionally retire. Consequently, no retirement pay ever accrued in their
favor.
b) The
grant of retirement benefits to the petitioners in addition to the separation
pay they have already received effectively amounts to additional compensation
for the same services. Unless specifically authorized by law, such additional
compensation is not allowed under Section 8, Article IX-B of the Constitution.
Background
Dubbed as one of the
landmark legislations Congress has enacted in recent years,[2]
RA No. 9136 [otherwise known as the Electric Power Industry Reform Act
Regulatory Act of 2001(EPIRA)] called
for the restructuring of the electric power industry, including the
privatization of the National Power Corporation’s (NPC) assets and liabilities.
One consequence of the restructuring and of NPC’s privatization was the
displacement and separation from the service of all its employees. To cushion the impact of the employees’
abrupt separation from the service, Section 63 of RA 9136 provided for the
payment of separation pay to affected employees, as follows:
Sec. 63.
Separation Benefits of Officials and Employees of Affected Agencies. – National
government employees displaced or separated from the service as a result of the
restructuring of the electricity industry and privatization of the NPC assets
pursuant to this Act, shall be entitled to either a separation pay and other benefits in accordance
with existing laws, rules or regulations or
be entitled to avail of the privileges provided under a separation plan which
shall be one and one-half month salary for every year of service in the
government…[Emphasis supplied]
On
Section 3.
Separation and Other Benefits
(a)
The
separation benefit shall consist of either
a separation pay and other benefits granted in accordance with existing laws,
rules and regulations or a
separation plan equivalent to one and one half (1-1/2) month’s salary for every
year of service in the government, whichever is higher: Provided, That the
separated or displaced employee has rendered at least one (1) year of service
at the time of effectivity of the Act. [Emphasis supplied]
x x x x
(f) Likewise, “Separation” or “Displacement” refers
to the severance of employment of any official or employee, who is neither
qualified under existing laws, rules and regulations nor has opted to retire
under existing laws, as a result of the Restructuring of the electric
power industry or Privatization of NPC assets pursuant to the Act. [Emphasis
supplied]
Thus, on
when NPC refused to pay the demanded optional retirement benefits.
The petitioners
are not entitled to a retirement benefit that never accrued.
In
my view, there is only one act of exit
from the service and only one service to exit from; unless otherwise provided
by law, only one separation benefit can be paid for this exit.
This means, in concrete
terms, that the petitioners who opted to be separated from the service under
the NPC restructuring plan and who have received separation pay under RA 9136, cannot
also be considered to have separately exited from the same service through optional
retirement under CA 186, entitling them to separate retirement benefits under
this law. RA 9136 provides for
separation benefits in the alternative and does not offer both.
As applied to the
present case, the petitioners were employees who were qualified and could claim
optional retirement had they chosen to do so. They were asked how they wanted
to exit the service. Instead of choosing
the exit via optional retirement
under CA 186, they chose to receive separation pay under the NPC restructuring
plan. Under these facts, they never
availed of the CA 186 optional retirement and thus never optionally retired
from the service. Had they opted to retire optionally, they obviously would not
need to be separated under the NPC restructuring plan and be paid separation
pay under this plan.
That the petitioners in
the present case were given an option is manifestly clear under Section 63 of
RA 9136 which states that displaced or
separated employees shall be entitled either
to:
a) receive
separation pay and other benefits in accordance with existing laws, rules and
regulations; or
b) avail
of the privileges provided under the separation plan, which shall be one and
one-half month salary for every year of service in the government.
The law’s use of the
words “either. . . or” connotes that the law offers an “option” between the separation benefits, rather than an
accumulation of these benefits as the
petitioners would want to impress upon this Court. This interpretation is supported by the
well-settled rule in statutory construction that the word “or” is
a disjunctive term signifying
dissociation and independence of one thing from other things enumerated.[5]
In Centeno
v. Villalon-Pornillos,[6]
the Court emphasized that:
In its elementary sense,
"or", as used in a statute, is a
disjunctive article indicating an alternative. It often connects a series of words or
propositions indicating a choice of either. When "or" is
used, the various members of the enumeration are to be taken separately.
[Emphasis supplied]
That an option was
given to the petitioners is further strengthened by the terms of the Implementing
Rules and Regulations (IRR) of the
EPIRA, heretofore quoted, which defines separation
or displacement as the severance of
employment of any official or employee, who
is neither qualified under existing laws, rules and regulations nor has opted to retire under existing laws. Significantly, under this IRR, the concept of
a separated or displaced employee as a result of NPC’s restructuring includes those
who have not opted to retire under
existing laws. In other words, the IRR expressly
excludes from its coverage those employees who have opted to retire under
existing laws. Thus, the options open to employees are clearly alternative in character, i.e., a choice of either means of exit so
that the choice of one precludes the
other.
I would also wish to
emphasize the settled rule that the
right to retirement benefits only accrues when two conditions are met, first, when the conditions imposed by
the applicable law - in this case, CA 186
as amended – are met; and second, when an actual retirement takes
place. The Court clearly recognized
these conditions in Development Bank of the Philippines v. Commission on Audit[7] when it disallowed DPB’s partial
payment of retirement benefits to its employees ahead of actual retirement. We then held that:
The right to retirement benefits accrues only
upon certain prerequisites. First, the conditions imposed by the applicable
law – in this case, RA 1616 – must be fulfilled. Second, there must be actual retirement. Retirement means there is “a bilateral act of
the parties, a voluntary agreement
between the employer and the employees whereby the latter after reaching a
certain age agrees and/or consents to
severe his employment with the former. [Emphasis supplied]
From
this ruling, optional retirement clearly
is a mere expectancy until availed of
by those who are qualified to exercise the option to retire. If not taken because the employee chose the
separation package under RA 9136, then optional retirement under CA 186 simply remained
an expectancy that never materialized and is now forever lost. To put it differently, given one and the same
exit from the one and the same service for which only one
separation benefit is provided, there can be no actual retirement under CA
186 after exit via the RA 9136 route
has been taken; optional retirement under CA 186 has then become the road
not taken.
Larano is not a
controlling doctrine in the present case
I also fully agree with
the ponencia’s conclusion that this
Court’s ruling in Larano v. Commission on Audit[8] does not apply to the present
case. Larano is factually different from the present case so that its
ruling does not offer a solution to the present controversy.
First,
in Larano, Section 6 of RA 8041
merely provided that separated employees shall be entitled to such benefits as
may be determined by existing laws. In
the present case, Section 63 of RA 9136 clearly provides that separated
employees shall be entitled to either
a separation pay and other benefits in accordance with existing laws, rules
and regulations, or to one and
one-half-month salary for every year of service. Thus, Larano’s RA 8041 did not provide that displaced employees were
entitled to choose one of two given alternative benefits.
Second,
the Revised ERIP, particularly Item C as the Court emphasized in Larano, authorized payment of premium of
0.5 month per year of service to affected regular officials and employees, with
emphasis on allowing the adoption by other
GOCCs and GFIs of their own separation packages with incentives and premium over and above the existing retirement
benefits. In the present case, both
Section 63 of RA 9136 and the Implementing Rules (as approved by the Joint
Congressional Power Commission) provide that the separation benefit shall
consist of either separation
pay and other benefits in accordance with existing laws, rules and regulations,
or a separation plan
equivalent to one and one half month’s salary for every year of service in the
government, whichever is higher, with
the express caveat, derived from the
law and stated in detail in the implementing rules, that employees who have opted
to retire under existing laws are excluded from the plan’s coverage.
Third, in Larano, Section 7 of RA
8041, Section 6 of EO 286 and the Revised ERIP as approved by the President
clearly mandated the payment of retirement benefits to employees qualified to
retire under existing laws (such as RA 1616), in addition to the separation pay
to officials and employees affected by MWSS’ reorganization. In the present case, RA 9136 and its
implementing rules do not authorize the payment of retirement benefits in
addition to the separation pay that the petitioner received under the NPC
separation plan.
The additional
grant of retirement benefits to the petitioners effectively amounts to
additional compensation proscribed by the Constitution
Section 8 of Article IX(B) of the Constitution
states:
SEC.
8. No elective or appointive public officer or employee shall receive additional,
double or indirect compensation, unless specifically authorized by law,
nor accept without the consent of the Congress, any present, emolument, office,
or title of any kind from any foreign government. [Emphasis supplied]
Pensions
and gratuities shall not be considered as additional, double, or indirect
compensation.
The prohibition against additional or double
compensation except when specifically authorized by law is considered a
“constitutional curb” on the spending power of the government.[9] Peralta
v. Mathay[10] best
expressed the purpose of the prohibition when it held:
This
is to manifest a commitment to the fundamental principle that a public office
is a public trust. It is expected of a government official or employee that he
keeps uppermost in mind the demands of public welfare. He is there to render
public service. He is of course entitled to be rewarded for the performance of
the functions entrusted to him, but that should not be the overriding
consideration. The intrusion of the thought of private gain should be
unwelcome. The temptation to further personal ends, public employment as a
means for the acquisition of wealth, is to be resisted. That at least is the
ideal. There is then to be an awareness on the part of an officer or employee
of the government that he is to receive only such compensation as may be fixed
by law. With such a realization, he is expected not to avail himself of devious
or circuitous means to increase the remuneration attached to his position.
There is an additional
compensation when, for one and the same office for which a compensation has
been fixed, there is added to the fixed compensation an extra reward in the
form, for instance, of a bonus.[11] In the present case, I submit that the
payment of separation pay and retirement pay for a single exit from same
government service effectively constitutes payment for additional compensation;
the government would be paying twice for the same creditable service – a
feature absent from the original terms of employment that fixed the
compensation.
The illustrative
example cited by the respondent Department of Budget and Management is
instructive:
Given:
Highest monthly salary received - P8,506.30/month
Length of service - 22 years
Separation pay
under R.A. 9136 - 1.5 month’s salary for every year of service
Computation:
a.
Separation
pay under RA 9136 = (highest monthly salary
received
x length of
service) x 1.5 month’s salary per service year)
= (P8,506.30
x 22 years) x 1.5
= P187,138.60
x 1.5
=P280,707.90
b.
Retirement
benefits under C.A. 186, as amended
= highest
monthly salary received x
total gratuity months[12]
= P8,506.30
x 23 total gratuity
months
= P195,644.90
Total gratuity months:
20 years x 1 month
= 20
2 years x 1.5 months =
3
22 years 23 Total gratuity
months
This illustrative
example shows that similarly situated petitioners separated under RA 9136 shall
receive not only the amount of P280,707.90 as separation pay, but also
the amount of P195,644.90 as retirement pay under CA 186 based on the
same years of service in the government.
This is a grant of both separation and retirement benefits for one and
the same act of exit from government service, using exactly the same years of
service in the government as basis in the computation. To
validly receive this kind of double compensation, a law must exist as authority
for the additional grant. Thus, the
resolution of this case can be reduced to a search for this law.
Incidentally, the
present fact situation and the conclusion I draw are not without
precedent. While the facts are not
exactly the same, the facts of the present case run very close to those of Santos v. Court of Appeals.[13] In this case, upon optional retirement from the Judiciary on
However, to credit his years of service in the Judiciary in the
computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received
or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation
for exactly the same services, i.e., his services as MeTC Judge. Such
would run counter to the policy of this Court against double compensation for
exactly the same services. More important, it would be in violation of the
first paragraph of Section 8 of Article IX-B of the Constitution, which
proscribes additional, double, or indirect compensation. Said provision reads:
No elective or
appointive public officer or employee shall receive additional, double, or
indirect compensation, unless specifically authorized by law….
Section 11 of R.A. No.
7924 does not specifically authorize payment of additional compensation for
years of government service outside of the MMA.
thus highlighting that the legislative
authority for the payment of double compensation must possess a certain level
of specificity to comply with the constitutional requirement.
The case of Sadueste v. Municipality of Surigao[14]
provided an early opportunity for the Court to elaborate on the meaning of the
phrase “specifically authorized by law.” Sadueste
involved a claim for compensation by a district engineer for his designation as
a sanitary and waterworks engineer under the last paragraph of Section 1916 of
the Revised Administrative Code[15]
which, prior to the present constitutional prohibition of additional or double
compensation, merely provided a general grant of authority to pay additional
compensation. In denying Sadueste’s
petition, the Court explained the need, under the current prohibition against
double compensation, for a specific
authority given to a particular employee or officer because of exceptional
reasons meriting the payment of additional compensation:
The
authority granted in the last paragraph of section 1016 of the Revised
Administrative Code is a general
authority given to all district engineers. The authority required by the Constitution to receive double or
additional compensation is a specific
authority given to a particular employee or officer of the Government because
of peculiar or exceptional reasons warranting the payment of extra or
additional compensation. The purpose of the Constitution is to prohibit
generally payment of additional or double compensation except in individual
instances where the payment of such
additional compensation appears to be not only just but necessary.
[Emphasis supplied]
The subsequent case of Cajiuat v. Mathay, Sr.[16]
provided a stricter standard as it required that there must be a clear and unequivocal provision of law allowing
the grant of additional compensation. In
Cajiuat, permanent officials and
employees of the then Rice and Corn Administration (RCA) retired and received their retirement benefits under C.A. No.
186, as amended (Optional Retirement Law). Subsequently, Presidential Decree No. 4
abolished the RCA. The affected officials and employees then claimed separation
pay based on Section 26 of PD No. 4, which provides that “permanent officials
and employees of the [RCA]…who prefer to retire, if qualified for retirement,
shall be given gratuity equivalent to one month salary for every year of
service but in no case more than twenty-four month’s salary, in addition to all
other benefits under existing laws and regulations.” In denying the RCA retirees’ claim of double
gratuity, the Court significantly held:
This
Court, after a careful consideration, arrives at the same conclusion. There must be a provision, clear and
unequivocal, to justify a double pension. The general language employed in paragraph 3, Section 26 of
Presidential Decree No. 4 fails to meet that test. All that it states is that
permanent employees of the Rice and Corn Administration who are retirable are
entitled to gratuity equivalent to one month salary for every year of service
but in no case more than twenty-four month’s salary in addition to other
benefits to which they are entitled under existing laws and regulations. To
grant double gratuity then is unwarranted. No reliance can he placed to the
use of the term "other benefits" found in the paragraph relied upon.
As clearly stated in the memorandum of the Solicitor General, they refer to
"those receivable by a retiree under the general retirement laws, like the
refund of contributions to the retirement fund and the money value of the
accumulated vacation and sick leaves of said official employee. The clause 'in
addition to all other benefits to which they are entitled under existing laws
and regulations,' was inserted to insure the payment to the retiree of the
refund of the contributions to the retirement fund and the money value of the
accumulated vacation and sick leaves of said official or employee."
That
is all it can plausibly signify. To go further would make it a fruitful parent
of injustice. It would set at naught a state policy dictated by reason and
fairness alike. Petitioners seek to claim the status of an exempt class. The
burden of proof is on them. That they failed to meet, relying as they do on
words hardly indicative of their being accorded a favored status. To justify
such a result, it is imperative that the language employed be of the clearest
and most satisfactory character. The paragraph relied upon in Section 26 of
Presidential Decree No. 4, to repeat, cannot be so characterized.
One
last word. It is to be added that the rule against double compensation is
nothing new. It was so held in Peralta v. Auditor General. While the question
involved is not identical, its ratio decidendi applies to the instant
situation, namely, to allow what petitioners seek "would be a clear
disregard of the prohibition to receive both the compensation and the pension,
annuity, or gratuity." Peralta was cited with approval in a later case,
The ruling in Cajiuat
squarely applies to the present case since the
language of Section 63 of RA 9136 similarly fails to meet the test that
that there must be in the law a clear
and unequivocal provision allowing the grant of additional compensation. RA 9136, in fact, speaks against the grant of
such additional compensation as it provides for the grant of only one
separation benefit when it stated:
“[n]ational government employees displaced or
separated from the service as a result of the restructuring of the electricity
industry and privatization of the NPC assets pursuant to this Act, shall be
entitled to either a separation pay and other benefits in
accordance with existing laws, rules or regulations or be entitled to
avail of the privileges provided under a separation plan which shall be one and
one-half month salary for every year of service in the government.” [17]
To my mind, these terms cannot be any clearer in
expressing the law’s intent to provide only one separation benefit. Thus, the
specific legislative authorization contemplated by Section 8, Article IX-B of
the Constitution for the payment of additional retirement benefits to the
petitioners is totally absent.
In light of all these, I vote to DENY
the petition.
ARTURO D. BRION
Associate Justice
[1]
An Act Ordaining In the Electric Power Industry, Amending For The
Purpose Certain Laws and For Other Purpose, Approved
[2] See Freedom from Debt Coalition v. Energy Regulatory Commission, 476
Phil. 134 (2004).
[3] The Department of Energy, in
consultation with the NPC, Department of Budget and Management, Department of
Trade and Industry, Energy Regulatory Commission, National Electrification
Administration, Power Sector Assets and Liabilities Corporation and other
Electric Power Industry Participants drafted the IRR.
[4] Section 12 of CA 186, as amended
by RA 1616 states:
(c) Retirement is
likewise allowed to any official or employee, appointive or elective,
regardless of age and employment status, who has rendered a total of twenty
years of service, the last three years of which are continuous. The benefit shall, in addition to the return
of his personal contributions with interest compounded monthly and the payment
of the corresponding employer’s premiums described in subsection (a) of Section
five hereof, without interest, be only a gratuity to one month’s salary for
every year of the first twenty years of service, plus one and one-half month’s
salary for every year of service over twenty but below thirty years and two
month’s salary for every year of service over thirty years in case of employees
based on the highest rate received and in case of elected officials on the
rates of pay as provided by law. This
gratuity is payable by the employer or officer concerned which is hereby
authorized to provide the necessary appropriation or pay the same from any
unexpended items of appropriations or savings in its appropriations. Officials and employees retired under this
Act shall be entitled to the commutation of the unused vacation and sick leave,
based on the highest rate received, which they may have to their credit at the
time of retirement.
[5] Pimentel v. COMELEC, 352 Phil. 424 (1998).
[6]
G.R. No. 113092,
[7]
467 Phil. 62 (2004).
[8] G.R. No. 164542,
[9] Joaquin G. Bernas, S.J., THE
1987 CONSTITUTION OF THE REPUBLIC OF THE
[10]
148 Phil. 261 (1971).
[11] Bernas, supra note 9 at
926.
[12] Conversion of creditable service
into gratuity months:
a.
One
month for every creditable year of service not exceeding twenty years;
b. One and half months for every
year creditable year of service over twenty years but not exceeding thirty
years; and
c.
Two
months for every creditable year of service in excess of thirty years.
[13] 399 Phil. 282 (2000).
[14] 72 Phil. 485 (1941).
[15] The provision states: “Upon
designation of the Director of Public Works, a district engineer may be allowed
additional compensation with the approval of the provincial board not to exceed
sixty pesos per month to be paid from the income of the waterworks systems
supervised by him for services rendered in his capacity as sanitary and
waterworks engineer.”
[16] 209 Phil. 579 (1983).
[17] Sec. 63, RA 9136 (otherwise known as the Electric Power Industry Reform Act Regulatory Act of 2001).