with whom Mr. Justice
Martín agrees, dissenting.
San Juan, Puerto Rico, December 7, 1972
I concur with the majority in that the irregular employees, not permanent, of the government and of its agencies and of the municipalities are constitutionally protected in their employment against the discriminatory removal by reason of political ideas. The long tradition of discriminations by rea*991son of political ideas in the municipal employment, as is pointed out in the majority opinion, requires the courts to sift the evidence in order to make themselves sure that no discrimination actually exists in the action of the nominating authority.
With what I cannot agree, nevertheless, is with the result reached in this case. Without the benefit of having heard the witnesses nor observed their conduct, the majority has become today a trial court and trier of an issue of fact which was not adequately raised either by the petitioners or by the respondents or decided by the respondent court, to wit: the political reasons of the alleged removal as a question of fact.
Petitioners’ allegations presented the following theory: petitioners (originally 32 in all) were 'permanent employees who were removed for political reasons. Appellee’s position always was that the petitioners were not permanent employees, but irregular employees, who abandoned their jobs and were substituted by others.
The trial judge, more than once during the trial, stated to the parties what was, according to his opinion, the point at issue. The trial judge sustained the view, as it appears from pages 81-82 of the transcript (piece II), that if the employees were regular employees and if they abandoned their jobs it was necessary to prefer charges to each one. The judge stated thus, after ten petitioners had testified:
“Judge: (addressing himself to petitioners’ counsel)
I frankly believe, colleague, I believe that we are losing time, because this here is a repetition of the same, the same thing. What the court has technically to decide is whether these employees, under these circumstances are personnel protected by the provisions of § 93 of the Municipal Law, if their positions are regular, the irregularity of the work they perform. I would use, with what has been stipulated, the act of municipal hearing, I mean, not municipal hearing, but preliminary hearing with the exhibits which have been submitted. The essential fact of the employment of these petitioners with the Municipality and the *992regularity with which they work in the Municipality has been delineated. I am not sure in relation to the wage, because the wage is not....
Petitioners:
It would not be a problem, because we can stipulate, besides it is not necessary.
Judge:
The question is whether these employees requested reinstatement, if they reported to work, abandoned the work. I consider it essential if a regular employee protected by said § 93, then the only valid remedy [sic] is through the preferment of charges, if the employee abandons his position the Mayor has to prefer charges and a hearing is set and it is determined whether or not he abandoned it, that is the just cause that he sets forth. Therefore these circumstances do not relieve the Mayor from the preferment of charges if employees covered and protected by § 93 of the Municipal Law and covered by the Ordinance of Merits are involved.
Respondents:
Eh....
Judge:
These reports which the witnesses are making and then the cross-examination to challenge what we say as to whether or not they in fact saw the Mayor, if they have been present, is nothing pertinent to the case.”
The trial judge in his judgment, concluded that the petitioner employees were not regular employees but they did fall “[u]nder the classification of irregular personnel, excluded from the Competitive Service” and that “in view of the legal situation applicable to the relationship of these petitioners with the Municipality of Guaynabo, this contention (removal for political reasons) results irrelevant and impertinent to their particular cases.”
The judge did not make a specific finding of fact as to the alleged political motivation. Neither “did he reject,” as it is affirmed in the majority opinion, the theory and version of the respondent that petitioners did not appear for work. Of the *993thirty-two petitioners, four desisted and only ten offered their testimony. Of the ten, three did not offer testimony in which to support the finding of fact, which the majority of the court now makes, that they were removed for political motivations.1
I believe that it corresponds to the trial court, as court of first instance, to make findings of fact which on account of a mistaken concept of the true controversy (as we see it now) it considered “irrelevant and impertinent to their particular cases.” For that purpose I would set aside the judgment appealed from and I would remand the case to the trial court to proceed in a manner consistent with the foregoing.
These three are Manuel Crespo Reyes (pp. 33-37); Carmelo Robles (pp. 48-52); and Ambrosio Rosado (pp. 64-73).