Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No.

RTJ-92-836 August 2, 1995 OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. JUDGE JESUS V. MATAS, RTC, Branch 2, Tagum, Davao del Norte (acting Presiding Judge, RTC Branch 18, Digos Davao del Sur) and EDUARDO C. TORRES, JR., OIC, Clerk of Court, RTC, Tagum, Davao del Norte, respondents. DAVIDE, JR., J.: In his Memorandum dated 26 February 1992, then Deputy Court Administrator, now Court Administrator, Ernani Cruz Pao informed the Court of a letter he received from Atty. Ma Dolores L. Balajadia, Deputy Clerk of Court, Third Division of the Sandiganbayan, notifying his office that Judge Jesus V. Matas and Eduardo C. Torres, Jr. were accused in Criminal Case No. 17378 of violation of Section 3(e) of R.A. No. 3019, as amended. He then recommended that the Office of the Court Administrator (OCA) be authorized to file the proper administrative charges against Judge Matas and Torres, provided that, pending the outcome of Criminal Case No. 17378, proceedings in the administrative case be suspended after the filing by the respondents of their comment. The said recommendation having been approved, the OCA filed with this Court an administrative complaint charging the herein respondents with the violation of Section 3(e) of the Anti-graft and Corrupt Practices Act committed as follows: 1. That on or about the month of March, 1987 respondents Judge Jesus V. Matas, Eduardo Torres, Jr., OIC Clerk of Court and in connivance with private citizen George Mercado concealed from J.K. Mercado and Sons Agricultural Enterprises his (George Mercado's) knowledge of the petition for the issuance of new owner's duplicate copies OCT Nos. P-12658, 12659, P-12661 and T-9857, and filed Misc. Case No. 1626 before the sala of respondent Judge and took cognizance of the same notwithstanding the fact that his Court has no jurisdiction over Kapalong and Sto. Tomas, Davao where subject properties covered by the aforesaid titles where located. 2. That notwithstanding the fact that the properties are owned by J.K. Mercado and Sons Agricultural Enterprises, respondent Judge issued an Order directing the posting of said Order and petition for at least ten days prior to the scheduled hearing on April 20, 1987 at the Office of the Clerk of Court, the Municipal Hall, Barangay Hall or Barangay School where the properties are located; 3. That thereafter on April 6, 1987 respondent Judge likewise issued an Order directing only the Station Commander of Sto. Tomas, Davao to comply with the posting despite the fact that some of the properties involved in Misc. Case No. 1626 are situated in Kapalong, Davao; and 4. That a day after the hearing where J.K. Mercado and Sons Agricultural Enterprises was not present, respondent Judge forthwith issued an Order for the issuance by the Register of Deeds of Davao of new owner's duplicate of aforesaid titles to George Mercado thus, causing injury to J.K. Mercado and Sons Agricultural Enterprises whose owner's duplicate copies in its possession were cancelled without due process. Attached thereto is the original copy of the information in Criminal Case No. 17378 entitled "People of the Philippines vs. Judge Jesus V. Matas, RTC, Branch 2, Tagum, Davao del Norte (Acting Presiding Judge, RTC, Branch 18, Digos, Davao del Sur) and Eduardo Torres, Jr., OIC Clerk of Court, RTC, Tagum, Davao, et al." After the filing by the respondents of their separate verified answers, this Court referred the case to Associate Justice Jorge S. Imperial of the Court of Appeals for investigation, report, and recommendation. On 17 December 1992, the OCA received respondent Torres's motion to dismiss the complaint as against him on the ground of mootness because he had ceased to be employed in the judiciary and had been cleared of all his accountability with the Supreme Court as of 13 April 1992. The Court referred this motion on 26 January 1993 to Justice Imperial for inclusion in his investigation, report, and recommendation. It turned out, however, that the said motion had been filed with the Court of Appeals as early as 14 November 1992 and had already been denied by Justice Imperial in his resolution of 6 January 1993 in the light of this Court's ruling in Administrative Case No. 223-J (Perez vs. Abiera, 11 June 1975). The hearing of the case commenced on 11 January 1993. However, after having presented two witnesses, the counsel for the private complainant and the OCA representative moved for a suspension of the proceedings because they intended to amend the complaint. Justice Imperial granted the motion and gave the complainants ten days within which to file with this Court the amended complaint. The complainants then submitted to this Court an amended complaint adding the following grounds for administrative discipline, viz.: (a) gross inexcusable negligence, and (b) gross ignorance of law. and modifying portions of the specification of the charges by: (a) Deleting from paragraph 1 of the original complaint the word Kapalong; (b) Deleting the original paragraph 3 and making as the new paragraph 3 the original paragraph 4 which was modified to read as follows:

3. That a day after the hearing where J.K. Mercado and Sons Agricultural Enterprises was not present, respondent Judge, acting with evident bad faith and manifest partiality, with undue haste and/or gross inexcusable negligence, to favor George Mercado, and grossly ignorant of the laws involved, and knowingly fully well that his order dated 24, 1987 [sic] was not complied with, forthwith issued an order dated April 21, 1987 for the issuance of the Register of Deeds of Davao of new owner's duplicate of aforesaid titles, which George Mercado caused to be cancelled later when he registered the deeds of sale over the said properties in his favor, thus, causing injury to J.K. Mercado and Sons Agricultural Enterprises whose owner's duplicate copies in its possession were cancelled because of fraudulent acts of respondents and without due process. Attached thereto is the amended information in criminal Case No. 17378 before the Sandiganbayan. This Court admitted the amended complaint, forwarded it to Justice Imperial, and required the respondents to file their respective comments thereon. Respondent Torres filed his comment (denominated as Answer). Respondent Judge Matas, on the other hand, filed a motion to dismiss, which this Court referred to Justice Imperial for inclusion in his investigation, report, and recommendation. The investigating Justice deferred the resolution thereof until the termination of the investigation. Later respondent Judge Matas filed his comment on the amended complaint. Thereafter, the hearing was continued with the parties submitting, per their agreement, their evidence in the form of affidavits to which were attached all pertinent supporting documents. The hearing ended on 8 August 1994, and the parties submitted their respective lengthy memoranda. Not to be outdone, Justice Imperial submitted a 44-page report, typed single-space on legal size bond paper wherein he patiently narrated the minute details of the antecedent facts and meticulously analyzed the arguments of the parties on the issues involved, namely: 1. Whether or not the respondent Judge acted without jurisdiction in taking cognizance of Miscellaneous Case No. 1626; 2. Whether or not respondent Judge acted with gross and inexcusable negligence and gross ignorance of law when he took cognizance of and decided Miscellaneous Case No. 1626 in favor of petitioner therein, George Mercado; 3. Whether or not respondents conspired with George Mercado to conceal from J.K. Mercado and Sons Agricultural Enterprises the pendency of Miscellaneous Case No. 1626. As to the first issue, the respondent Judge argues that the parcels of land subject of Miscellaneous Case No. 1626 are located in Kapalong, Davao del Norte. The so-called Municipality of Sto. Tomas, Davao del Norte, where the said parcels are claimed to be located never legally existed as a municipality because it was carved out of Kapalong and created into a separate municipality by then President Carlos P. Garcia and not by Congress. Conformably with Pelaez vs. Auditor General (15 SCRA 569 [1965]), the creation of the Municipality of Sto. Tomas is void since 1 January 1960 upon the effectivity of R.A. No. 2370. That Sto. Tomas does not legally exist as a municipality was affirmed in the decision of this Court of 29 September 1988 in Municipality of Kapalong vs. Hon. Felix L. Moya (166 SCRA 70 [1988]). Since the subject parcels of land are in fact located in Kapalong, the same are within the administrative area over which his court, Branch I of the Regional Trial Court (RTC) of Davao del Norte, can exercise jurisdiction pursuant to Administrative Order No. 7. The respondent Judge adds that, even granting for the sake of argument, that the Municipality of Sto. Tomas legally exists and is within the administrative area of Branch IV, RTC of Davao del Norte, his court can still exercise jurisdiction over the case because one of the parcels involved is located in Kapalong, a fact recognized in the original administrative complaint. Furthermore, Miscellaneous Case No. 1626 is not a real action but a personal one, and it being so, his court has jurisdiction over it, since the petitioner therein, George Mercado, is a resident of Kapalong. In resolving the first issue, Justice Imperial adopts the ratiocinations of the Sandiganbayan in its denial of the respondent Judge's motion to quash the information in Criminal Case No. 17378 that at the time he committed the questioned acts in Miscellaneous Case No. 1626, the Municipality of Sto. Tomas was not yet declared nonexistent, that this Court has yet to come up with a modification of Administrative Order No. 7 to effect the necessary amendment therein insofar as Sto. Tomas is concerned; and that, in any event, it is not impossible at all that this Court may decide to maintain the territorial jurisdiction of Branch IV of the RTC of Davao del Norte over the barrios of Kapalong which were converted into the municipality of Sto. Tomas. Nevertheless, Justice Imperial concluded: While it is true that Judge Matas acted without jurisdiction in taking cognizance of Miscellaneous Case No. 1626, it is likewise true that his mere acting without jurisdiction should not subject him to an administrative action for gross inexcusable negligence and/or ignorance of the law. In the case at bar, Judge Matas' act not being without basis whatsoever nor motivated by bad faith, it cannot be said with certainty that respondent Judge Matas acted with gross inexcusable negligence and/or gross ignorance of the law. Just because he believed, though erroneously, that the action was in personam or that he had jurisdiction over the four (4) properties, since one of the properties (OCT No. P-9855) was located at Kapalong and all the properties were included in one petition,

should not be taken against him to the extent of being held liable administratively for gross inexcusable negligence and/or gross ignorance of the law. To hold otherwise would be to subject every Judge whose decision is reversed, to be charged with gross negligence or gross ignorance of the law. The second issue primarily revolves on the failure of the respondent Judge to require publication of the petition in the Official Gazette and notices to the registered owners. Justice Imperial resolved the issue in this wise: In the case at bar, the respective certificate of title of the properties in question on file with the Register of Deeds are existing, and it is the owner's copy of the certificate of title that was alleged to have been lost or destroyed. Thus, it is Section 109 of P.D. 1529 which was approved on June 11, 1978 that becomes effective and is applicable, a reading of which shows that it is practically the same as Section 109 of Act No. 496, governing reconstitution of a duplicate certificate of title lost or destroyed. Consequently, it is sufficient that the notice under Section 109 is sent to the Register of Deeds and to those persons who are known to have, or appear to have, an interest in the property as shown in the Memorandum of encumbrances at the back of the original or transfer certificate of title on file in the office of the Register of Deeds. From a legal standpoint, there are no other interested parties who should be notified, except those above-mentioned since they are the only ones who may be deemed to have a claim to the property involved. A person dealing with registered property is not charged with notice of encumbrances not annotated on the back of the title. The only piece of evidence that would show the alleged ownership of the J.K. Mercado over the four (4) parcels of land, subject of Misc. Case No. 1626 is the alleged private Memorandum of Agreement entered on November 19, 1981 by and between George Mercado and J.K. Mercado. Said agreement was never entered on the Certificate of Titles in the name of their original/former owners on file with the Register of Deeds at the time of the filing or pendency of Misc. Case No. 1626. As such, how can private complainant expect to be notified. Respondent Judge Matas, dated March 24, 1987 issued the following Order anent notice of the petition, to wit: . . . At Least ten (10) days prior to the scheduled hearing, a copy of this Order and the petition shall be posted at the expense of the petitioner on each bulletin board of the following: the office of the Clerk of Court; the Municipal Hall and the Barangay Hall or if there be none, the Barangay School where the subject property is located. If there is no bulletin board in any of the aforementioned places, the posting shall be made on a conspicuous place, near the main door. . . . (emphasis supplied.) Clearly, respondent Judge Matas had ordered proper and sufficient notice of the petition. Furthermore, he had the right to rely on the 1st indorsement and certification of PFC Ciriaco Obenza that posting was made (quoted on page 5 and numbered 11 of this report). The mere fact that said certification did not specifically mention that posting was also made in the bulletin board of the Clerk of Court does not rule out the posting thereon considering the presumption that official duty has been done. While it is true that no posting was made at Kapalong, where one of the properties was located per the petition and OCT No. P-9855, the fault, if any, should be placed upon respondent Torres who made the request only to the Station Commander of the Integrated National Police of the Municipality of Sto. Tomas (none to Kapalong) to cause the posting, although the order of Judge Matas specifically provided for posting "where the subject property is located. However, there is no clear evidence that respondent Torres acted with malice and/or gross negligence in doing so, considering the certification of the Register of Deeds that the four (4) properties were all located at Sto. Tomas (Exhs. "A-5-A" to "A-8-A") thereby misleading Torres under the circumstances to have the posting made only in Sto. Tomas. As to the third issue, Justice Imperial said: A reading of the evidence and arguments of complainant in support of its claim that there was conspiracy by and between respondents and George Mercado shows that the same is founded on mere inferences and conjectures. Thus, complainant concludes that there was complicity because Judge Matas assumed jurisdiction over the case of which he has none and despite conflicting allegations in the petition, as well as erroneous posting and notices, arguing in its Memorandum as follows: xxx xxx xxx Moreover, the conclusion of petitioner that there was conspiracy between George Mercado and respondent Judge Matas because the latter acted with "undue haste" in rendering the Decision one (1) day after the reception of evidence in support of the petition is unfounded. The issue involved is simple and the petition was unopposed and thus there was no reason to delay its resolution. In fact, Miscellaneous Case No. 1626 is not the first and only case that was decided by Judge Matas, either in open court immediately upon the termination of the presentation of evidence and/or a few days thereafter, to wit: [enumeration of nine (9) Miscellaneous Cases, Exhibits "9-M-13" to "9-M-21," inclusive]. xxx xxx xxx Consequently, even assuming, arguendo, that undue injury resulted to complainant and unwarranted benefits was obtained by George Mercado, in view of all the foregoing, respondents did not act with manifest partiality,

evident bad faith, gross inexcusable negligence or gross ignorance of the law. Justice Imperial then recommends that the respondents, Judge Jesus V. Matas and Mr. Eduardo C. Torres, be absolved from all the charges in the Amended Complaint. We agree with him except as regards his opinion that the respondent Judge had no jurisdiction over Miscellaneous Case No. 1626. There is, obviously, a confusion between jurisdiction and the exercise of jurisdiction. Jurisdiction is the power and authority to hear, try, and decide a case; it does not depend on the regularity of the exercise of that power (Herrera vs. Barreto, 25 Phil. 245 [1913]; Century Insurance Co., Inc. vs. Fuentes, 2 SCRA 1168 [1961]). It is conferred by substantive law, and, insofar as the Regional Trial Courts are concerned, by B.P. Blg. 129 (Judiciary Reorganization Act of 1980) or by other statutes. On the other hand, the manner of the exercise of jurisdiction is, unless otherwise provided by the law itself, governed by the Rules of Court or by orders which are, from time to time, issued by this Court. Under Section 17 of B.P. Blg. 129, the exercise of jurisdiction of the Regional Trial Courts and their judges is basically regional in scope (Malaloan vs. Court of Appeals, 232 SCRA 249, 260 [1994]), but under Section 18, it may be limited to the territorial area of the branch in which the judge sits. The said section reads: Sec. 18. Authority to define territory appurtenant to each branch. The Supreme Court shall define the territory over which a branch of the Regional Trial Court shall exercise its authority. The territory thus defined shall be deemed to be the territorial area of the branch concerned for purposes of determining the venue of all writs, proceedings, or actions, whether civil or criminal, . . . (emphasis supplied) Pursuant to this provision, the Court issued Administrative Order No. 7, series of 1983, (Exhibit "O"), defining the territorial areas of the Regional Trial Courts in Regions I to XII. Under the said order, the territorial areas covered by the RTC of Davao del Norte are as follows: 1 Branches I and II with seats at Tagum comprising the municipalities of Asuncion, Kapalong, Mabini, Maco, New Corella, Pantukan, San Vicente and Tagum. 2 Branch III with seat at Nabunturan comprising the municipalities of Compostela, Mawab, Monkayo, Montevista, Nabunturan, New Bataan and San Mariano. 3 Branch IV with seat at Panabo comprising the municipalities of Babak, Carmen, Kaputian, Panabo, Samal and Sto. Tomas. In the Malaloan case, which involves a related Administrative Order No. 3 issued on 19 January 1983 defining the limits of the exercise of jurisdiction by the RTC's in the National Capital Judicial Region, this Court held: In fine, Administrative Order No. 3 and, in like manner, Circular Nos. 13 and 19, did not per se confer jurisdiction on the covered regional trial courts or its branches, such that non-observance thereof would nullify their judicial acts. The administrative order merely defines the limits of the administrative area within which a branch of the court may exercise its authority pursuant to the jurisdiction conferred by Batas Pambansa Blg. 129. In the instant case, it cannot be said that Branch I of the RTC of Davao del Norte, then presided by the respondent Judge, had no jurisdiction over Miscellaneous Case No. 1626 which is a "Petition for the Issuance of Owner's Duplicate Certificates in lieu of Lost O.C.T. Nos. P-12658, P-12659, P-12661, and P-9855." Section 2 of P.D. No. 1529 states that Courts of First Instance (CFI) shall have exclusive jurisdiction over all applications for original registration of title to lands including improvements and interests therein, and over all petitions filed after original registration of title, with power to hear and determine all questions arising upon such applications or petitions. Under Chapter X of the decree entitled "Petitions and Actions After Original Registration" is Section 109 which governs petitions for issuance of lost or stolen owner's duplicate certificate of title. Clearly, petitions for replacement of lost duplicate certificates, as in Miscellaneous Case No. 1626, are cognizable by the RTCs. Now, on the venue or the place where such petitions may be instituted. Section 17 of P.D. No. 1529 provides that the application for land registration shall be filed with the CFI (now RTC) of the province or city where the land lies. Under Section 108 of the same decree, all petitions motions after original registration shall be filed and entitled in the original case in which the decree of registration was entered. Notably, the certificates involved in Miscellaneous Case No. 1626 were each obtained not pursuant to a decree issued in a judicial registration proceeding, but pursuant to a patent issued by the Director of Lands and registered in accordance with Section 122 of Act No. 496 (now Section 103 of P.D. No. 1529). Nevertheless, applying Sections 2, 17, 108, and 109 of P.D. No. 1529, we may say that the petition for replacement of lost duplicate certificates in Miscellaneous Case No. 1626 was properly taken cognizance of by Branch I of the RTC of Davao del Norte presided by the respondent Judge, since that petition stated that the lots covered by the lost duplicates are situated in Kapalong and Sto. Tomas which are both in the province of Davao del Norte. Hence, no lack of jurisdiction, gross ignorance of law, or gross inexcusable negligence can be ascribed to the respondent Judge. If at all, there was an unwitting violation of Administrative Order No. 7 which places Kapalong within the territorial area of either Branch I or II of the RTC of Davao del Norte, and Sto. Tomas, within Branch IV of the same court. He exceeded the territorial area of his Branch, for at the time Miscellaneous Case No. 1626

was filed, Sto. Tomas, which was composed of the barrios of Kapalong, was not yet declared as non-existent. It was only in the decision of 29 September 1988 in Municipality of Kapalong vs. Moya that the non-existence of Sto.Tomas as a municipality was confirmed. Yet, even on this score, in point of adjective law the error consisted merely of the impropriety of the venue of the petition. That procedural lapse is not so pervasive as to affect the validity of the proceedings, absent a showing of bad faith therein. Considering that objections to venue may even be waived, and the amorphous status of Kapalong in relation to Sto. Tomas during the period material to the questioned proceeding, it would be too much to require accurate resolution of the issue and unfailing compliance therewith by the respondent judge. As correctly held by Justice Imperial, there is no proof of conspiracy between the respondents and George Mercado. Neither is there any evidence that private complainant J.K. Mercado and Sons Agricultural Enterprises suffered damage or injury in its claimed right and interest in the lots covered by the lost certificates subject of Miscellaneous Case No. 1626. In his order granting the petition, the respondent Judge merely declared as null and void the "lost" owners' duplicate copies of the original certificates of title (OCT) and directed the issuance of new duplicate copies which, perforce, remain in, the names of those appearing in the original copies of the OCT's in the custody of the Register of Deeds. He did not order the issuance of new ones in the name of George Mercado despite the latter's presentation of purported deeds of sale in his favor. The private complainant claims to be the owner of the lots by virtue of a Memorandum of Agreement executed between it and George Mercado on 19 November 1981 (Exhibits "W" and "W-1") wherein the latter acknowledged that the lots belong to the former and undertook to execute the necessary documents of conveyance in its favor. This Memorandum of Agreement was not annotated in the OCT's. And, the private complainant has never satisfactorily explained why it failed to enforce its rights under that agreement at anytime before the latter filed Miscellaneous Case No. 1626 in 1987. Necessarily then, the fact of Mercado's recognition of the complainant's "ownership" of the lots remained a private matter between Mercado and the complainant. By its own negligence, the private complainant made possible any representation or misrepresentation by George Mercado, and it cannot now be heard to say that the respondent Judge acted on the petition of George Mercado "notwithstanding the fact that the properties are owned by" the private complainant, as alleged in paragraph 2 of both the original and amended complaint. Thus, the recommendation of Justice Imperial is in order. But, before writing finis to this case, we need to stress two principles in disciplinary proceedings against judges. One, the investigating Justice or Judge designated by the Court to conduct an investigation, submit a report, and make the appropriate recommendation does not have an authority to grant or deny a motion to dismiss the case. His authority is not co-extensive with the power or authority of his office. In this case, the investigating Justice should not have denied respondent Torres' motion to dismiss. Even if the reason for the denial were correct, he should have merely noted the motion and considered it in his report and recommendation, which the Court had suggested in the referral to him of the motion. Secondly, it must be noted that this Court had impliedly set aside the proviso in the resolution of 17 March 1992 that after the filing of comment by the respondents on the administrative complaint, proceedings thereon should be suspended pending the outcome of Criminal Case No. 17378 before the Sandiganbayan. The demands of public interest and public policy would not be expeditiously served if administrative cases should be made to await the termination of criminal cases or civil cases based upon the same facts or incidents from which the administrative cases arose. In view of the public trust character of a public office which exacts accountability and utmost responsibility, integrity, loyalty and efficiency at all times, administrative cases must be resolved as expeditiously as possible. It is primarily for this reason that in administrative cases only substantial evidence is required, not proof beyond reasonable doubt as in criminal cases, or preponderance of evidence as in civil cases (Section 5, in relation to Sections 1 and 2, Rule 133, Rules of Court). We thus rule that the pendency of a criminal case based on the same facts or incidents which gave rise to an administrative case does not suspend the administrative proceedings. However, in consideration of the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed, in the former and in the latter, the findings and conclusions in one should not necessarily be binding in the other. WHEREFORE, the instant complaint is DISMISSED, and respondents JUDGE JESUS V. MATAS and EDUARDO C. TORRES, JR. are hereby ABSOLVED of all the charges against them in the Amended Complaint. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Hermosisima, Jr. J., took no part.

HON. ARMAND FABELLA, in his capacity as SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS; DR. NILO ROSAS, in his capacity as REGIONAL DIRECTOR, DECSNCR; DR. BIENVENIDO ICASIANO, in his capacity as the SUPERINTENDENT OF THE QUEZON CITY SCHOOLS and DIVISION; ALMA BELLA O. BAUTISTA, AURORA C. VALENZUELA and TERESITA V. DIMAGMALIW, petitioners, vs. THE COURT OF APPEALS, ROSARITO A. SEPTIMO, ERLINDA B. DE LEON, CLARISSA T. DIMAANO, WILFREDO N. BACANI, MARINA R. VIVAR, VICTORIA S. UBALDO, JENNIE L. DOGWE, NORMA L. RONGCALES, EDITA C. SEPTIMO, TERESITA E. EVANGELISTA, CATALINA R. FRAGANTE, REBECCA D. BAGDOG, MARILYNNA C. KU, MARISSA M. SAMSON, HENEDINA B.CARILLO, NICASIO C. BRAVO, RUTH F. LACANILAO, MIRASOL C. BALIGOD, FELISA S. VILLACRUEL, MA. VIOLETA ELIZABETH Y. HERNANDEZ, ANTONIO C. OCAMPO, ADRIANO S. VALENCIA and ELEUTERIO S. VARGAS, respondents. DECISION PANGANIBAN, J.: Due process of law requires notice and hearing. Hearing, on the other hand, presupposes a competent and impartial tribunal. The right to be heard and, ultimately, the right to due process of law lose meaning in the absence of an independent, competent and impartial tribunal. Statement of the Case This principium is explained by this Court as it resolves this petition for review on certiorari assailing the May 21, 1993 Decision[1] of the Court of Appeals[2] in CA-G.R. SP No. 29107 which affirmed the trial courts decision,[3] as follows: WHEREFORE, the decision appealed from is AFFIRMED and the appeal is DISMISSED. The Hon. Armand Fabella is hereby ORDERED substituted as respondent-appellant in place of former Secretary Isidro Cario and henceforth this fact should be reflected in the title of this case. SO ORDERED.[4] The Antecedent Facts The facts, as found by Respondent Court, are as follows: On September 17, 1990, then DECS Secretary Cario issued a return-to-work order to all public school teachers who had participated in talk-outs and strikes on various dates during the period September 26, 1990 to October 18, 1990. The mass action had been staged to demand payment of 13th month differentials, clothing allowances and passage of a debt-cap bill in Congress, among other things. On October 18, 1990, Secretary Cario filed administrative cases against herein petitioner-appellees, who are teachers of the Mandaluyong High School. The charge sheets required petitioner-appellees to explain in writing why they should not be punished for having taken part in the mass action in violation of civil service laws and regulations, to wit: 1. grave misconduct; 2. gross neglect of duty; 3. gross violation of Civil Service Law and rules on reasonable office regulations; 4. refusal to perform official duty; 5. conduct prejudicial to the best interest of the service; 6. absence without leave (AWOL) At the same time, Secretary Cario ordered petitioner-appellee to be placed under preventive suspension. The charges were subsequently amended by DECS-NCR Regional Director Nilo Rosas on November 7, 1990 to include the specific dates when petitioner-appellees allegedly took part in the strike. Administrative hearings started on December 20, 1990. Petitioner-appellees counsel objected to the procedure adopted by the committee and demanded that he be furnished a copy of the guidelines adopted by the committee for the investigation and imposition of penalties. As he received no response from the committee, counsel walked out. Later, however, counsel, was able to obtain a copy of the guidelines. On April 10, 1991, the teachers filed a an injunctive suit (Civil Case No. 60675) with the Regional Trial Court in Quezon City, charging the committee appointed by Secretary Cario with fraud and deceit and praying that it be stopped from further investigating them and from rendering any decision in the administrative case. However, the trial court denied them a restraining order. They then amended their complaint and made it one for certiorari and mandamus. They alleged that the investigating committee was acting with grave abuse of discretion because its guidelines for investigation place the burden of proof on them by requiring them to prove their innocence instead of requiring Secretary Cario and his staff to adduce evidence to prove the charges against the teachers. On May 30, 1991, petitioner-appellee Adriano S. Valencia of the Ramon Magsaysay High School filed a motion to intervene, alleging that he was in the same situation as petitioners since he had likewise been charged and preventively suspended by respondent-appellant Cario for the same grounds as the other petitioner-

appellees and made to shoulder the burden of proving his innocence under the committees guidelines. The trial court granted his motion on June 3, 1991 and allowed him to intervene. On June 11, 1991, the Solicitor General answered the petitioner for certiorari and mandamus in behalf of respondent DECS Secretary. In the main he contended that, in accordance with the doctrine of primary resort, the trial court should not interfere in the administrative proceedings. The Solicitor General also asked the trial court to reconsider its order of June 3, 1991, allowing petitionerappellee Adriano S. Valencia to intervene in the case. Meanwhile, the DECS investigating committee rendered a decision on August 6, 1991, finding the petitioner-appellees guilty, as charged and ordering their immediate dismissal. On August 15, 1991, the trial court dismissed the petition for certiorari and mandamus for lack of merit. Petitioner-appellees moved for a reconsideration, but their motion was denied on September 11, 1991. The teachers then filed a petition for certiorari with the Supreme Court which, on February 18, 1992, issued a resolution en banc declaring void the trial courts order of dismissal and reinstating petitioner-appellees action, even as it ordered the latters reinstatement pending decision of their case. Accordingly, on March 25, 1992, the trial court set the case for hearing. June 8, 1992, it issued a pre-trial order which reads: As prayed for by Solicitor Bernard Hernandez, let this case be set for pre-trial conference on June 17, 1992 at 1:30 p.m., so as to expedite the proceedings hereof. In which case, DECS Secretary Isidro Cario, as the principal respondent, is hereby ordered to PERSONALLY APPEAR before this Court on said date and time, with a warning that should he fail to show up on said date, the Court will declare him as IN DEFAULT. Stated otherwise, for the said Pre-Trial Conference, the Court will not recognize any representative of his. By agreement of the parties, the trial conference was reset on June 26, 1992. However, Secretary Cario failed to appear in court on the date set. It was explained that he had to attend a conference in Maragondon, Cavite. Instead, he was represented by Atty. Reno Capinpin, while the other respondents were represented by Atty. Jocelyn Pili. But the court just the same declared them as in default. The Solicitor General moved for a reconsideration, reiterating that Cario could not personally come on June 26, 1992 because of prior commitment in Cavite. It was pointed out that Cario was represented by Atty. Reno Capinpin, while the other respondents were represented by Atty. Jocelyn Pili, both of the DECS-NCR and that both had special powers of attorney. But the Solicitor Generals motion for reconsideration was denied by the trial court. In its order of July 15, 1992, the court stated: The Motion For Reconsideration dated July 3, 1992 filed by the respondents thru counsel, is hereby DENIED for lack of merit. It appears too obvious that respondents simply did not want to comply with the lawful orders of the Court. The respondents having lost their standing in Court, the Manifestation and Motion, dated July 3, 1992 filed by the Office of the Solicitor General is hereby DENIED due course. SO ORDERED. On July 3, 1992, the Solicitor General informed the trial court that Cario had ceased to be DECS Secretary and asked for his substitution. But the court failed to act on his motion. The hearing of the case was thereafter conducted ex parte with only the teachers allowed to present their evidence. On August 10, 1992, the trial court rendered a decision, in which it stated: The Court is in full accord with petitioners contention that Rep. Act No. 4670 otherwise known as the Magna Carta for Public School Teachers is the primary law that governs the conduct of investigation in administrative cases filed against public school teachers, with Pres. Decree No. 807 as its supplemental law. Respondents erred in believing and contending that Rep. Act. No. 4670 has already been superseded by the applicable provisions of Pres. Decree No. 807 and Exec. Order No. 292. Under the Rules of Statutory Construction, a special law, Rep. Act. No. 4670 in the case at bar, is not regarded as having been replaced by a general law, Pres. Decree No. 807, unless the intent to repeal or alter the same is manifest. A perusal of Pres. Decree No. 807 reveals no such intention exists, hence, Rep. Act No. 4670 stands. In the event that there is conflict between a special and a general law, the former shall prevail since it evidences the legislators intent more clearly than that of the general statute and must be taken as an exception to the General Act. The provision of Rep. Act No. 4670 therefore prevails over Pres. Decree No. 807 in the composition and selection of the members of the investigating committee. Consequently, the committee tasked to investigate the charges filed against petitioners was illegally constituted, their composition and appointment being violative of Sec. 9 of Rep. Act. No. 4670 hence all acts done by said body possess no legal color whatsoever. Anent petitioners claim that their dismissal was effected without any formal investigation, the Court, after consideration of the circumstances surrounding the case, finds such claim meritorious. Although it cannot be gain said that respondents have a cause of action against the petitioner, the same is not sufficient reason to detract from the necessity of basic fair play. The manner of dismissal of the teachers is tainted with illegality. It

is a dismissal without due process. While there was a semblance of investigation conducted by the respondents their intention to dismiss petitioners was already manifest when it adopted a procedure provided for by law, by shifting the burden of proof to the petitioners, knowing fully well that the teachers would boycott the proceedings thereby giving them cause to render judgment ex-parte. The DISMISSAL therefore of the teachers is not justified, it being arbitrary and violative of the teachers right to due process. Due process must be observed in dismissing the teachers because it affects not only their position but also their means of livelihood. WHEREFORE, premises considered, the present petition is hereby GRANTED and all the questioned orders/decisions of the respondents are hereby declared NULL and VOID and are hereby SET ASIDE. The reinstatement of all the petitioners to their former positions without loss of seniority and promotional rights is hereby ORDERED. The payment, if any, of all the petitioners back salaries, allowances, bonuses, and other benefits and emoluments which may have accrued to them during the entire period of their preventive suspension and/or dismissal from the service is hereby likewise ORDERED. SO ORDERED.[5] From this adverse decision of the trial court, former DECS Secretary Isidro Cario filed an appeal with the Court of Appeals raising the following grounds: I. The trial court seriously erred in declaring appellants as in default. II. The trial court seriously erred in not ordering the proper substitution of parties. III. The trial court seriously erred in holding that R.A. No. 4670, otherwise known as Magna Carta for Public School Teachers, should govern the conduct of the investigations conducted. IV. The trial court seriously erred in ruling that the dismissal of the teachers are without due process.[6] As mentioned earlier, the Court of Appeals affirmed the RTC decision, holding in the main that private respondents were denied due process in the administrative proceedings instituted against them. Hence, this petition for review.[7] The Issues Before us, petitioners raise the following issues: I Whether or not Respondent Court of Appeals committed grave abuse of discretion in holding in effect that private respondents were denied due process of law. II Whether or not Respondent Court of Appeals seriously erred and committed grave abuse of discretion in applying strictly the provision of R.A. No. 4670 in the composition of the investigating committee. III Whether or not Respondent Court of Appeals committed grave abuse of discretion in dismissing the appeal and in affirming the trial courts decision.[8] These issues, all closely related, boil down to a single question: whether private respondents were denied due process of law. The Courts Ruling The petition is bereft of merit. We agree with the Court of Appeals that private respondents were denied due process of law. Denial of Due Process At the outset, we must stress that we are tasked only to determine whether or not due process of law was observed in the administrative proceedings against herein private respondents. We note the Solicitor Generals extensive disquisition that government employees do not have the right to strike.[9] On this point, the Court, in the case of Bangalisan vs. Court of Appeals,[10] has recently pronounced, through Mr. Justice Florenz D. Regalado: It is the settled rule in this jurisdiction that employees in the public service may not engage in strikes. While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public services. The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike. More recently, in Jacinto vs. Court of Appeals,[11] the Court explained the schoolteachers right to peaceful assembly vis-a-vis their right to mass protest: Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the

mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time -- recess, after classes, weekends or holidays -- to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one -- not the DECS, the CSC or even this Court -- could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by its nature was enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made answerable.[12] In the present case, however, the issue is not whether the private respondents engaged in any prohibited activity which may warrant the imposition of disciplinary sanctions against them as a result of administrative proceedings. As already observed, the resolution of this case revolves around the question of due process of law, not on the right of government workers to strike. The issue is not whether private respondents may be punished for engaging in a prohibited action but whether, in the course of the investigation of the alleged proscribed activity, their right to due process has been violated. In short, before they can be investigated and meted out any penalty, due process must first be observed. In administrative proceedings, due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.[13] The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School Teachers, which specifically covers administrative proceedings involving public schoolteachers. Section 9 of said law expressly provides that the committee to hear public schoolteachers administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers organization and a supervisor of the division. The pertinent provisions of RA 4670 read: Sec. 8. Safeguards in Disciplinary Procedure. Every teacher shall enjoy equitable safeguards at each stage of any disciplinary procedure and shall have: a. the right to be informed, in writing, of the charges; b. the right to full access to the evidence in the case; c. the right to defend himself and to be defended by a representative of his choice and/or by his organization, adequate time being given to the teacher for the preparation of his defense; and c. the right to appeal to clearly designated authorities. No publicity shall be given to any disciplinary action being taken against a teacher during the pendency of his case. Sec. 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. The foregoing provisions implement the Declaration of Policy of the statute; that is, to promote the terms of employment and career prospects of schoolteachers. In the present case, the various committees formed by DECS to hear the administrative charges against private respondents did not include a representative of the local or, in its absence, any existing provincial or national teachers organization as required by Section 9 of RA 4670. Accordingly, these committees were deemed to have no competent jurisdiction. Thus, all proceedings undertaken by them were necessarily void. They could not provide any basis for the suspension or dismissal of private respondents. The inclusion of a representative of a teachers organization in these committees was indispensable to ensure an impartial tribunal. It was this requirement that would have given substance and meaning to the right to be heard. Indeed, in any proceeding, the essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard.[14] Petitioners argue that the DECS complied with Section 9 of RA 4670, because all the teachers who were members of the various committees are members of either the Quezon City Secondary Teachers Federation or the Quezon City Elementary Teachers Federation[15] and are deemed to be the representatives of a teachers organization as required by Section 9 of RA 4670.

We disagree. Mere membership of said teachers in their respective teachers organizations does not ipso facto make them authorized representatives of such organizations as contemplated by Section 9 of RA 4670. Under this section, the teachers organization possesses the right to indicate its choice of representative to be included by the DECS in the investigating committee. Such right to designate cannot be usurped by the secretary of education or the director of public schools or their underlings. In the instant case, there is no dispute that none of the teachers appointed by the DECS as members of its investigating committee was ever designated or authorized by a teachers organization as its representative in said committee. Contrary to petitioners asseverations,[16] RA 4670 is applicable to this case. It has not been expressly repealed by the general law PD 807, which was enacted later, nor has it been shown to be inconsistent with the latter. It is a fundamental rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed unless it is convincingly and unambiguously demonstrated that the two laws are so clearly repugnant and patently inconsistent that they cannot co-exist. This is based on the rationale that the will of the legislature cannot be overturned by the judicial function of construction and interpretation. Courts cannot take the place of Congress in repealing statutes. Their function is to try to harmonize, as much as possible, seeming conflicts in the laws and resolve doubts in favor of their validity and co-existence.[17] Thus, a subsequent general law does not repeal a prior special law, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law.[18] The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public schoolteachers. Clearly, private respondents right to due process of law requires compliance with these requirements laid down by RA 4670. Verba legis non est recedendum. Hence, Respondent Court of Appeals, through Mr. Justice Vicente V. Mendoza who is now a member of this Court, perceptively and correctly stated: Respondent-appellants argue that the Magna Carta has been superseded by the Civil Service Decree (P.D. No. 807) and that pursuant to the latter law the head of a department, like the DECS secretary, or a regional director, like the respondent-appellant Nilo Rosas, can file administrative charges against a subordinate, investigate him and take disciplinary action against him if warranted by his findings. Respondent-appellants cite in support of their argument the following provisions of the Civil Service Decree (P.D. No. 807): Sec. 37. Disciplinary Jurisdiction. -xxx xxx xxx b) The heads of departments, agencies and instrumentalities xxx shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction xxx . Sec. 38,. Procedure in Administrative Cases Against Non-Presidential Appointees. a) Administrative Proceedings may be commenced against a subordinate officer or the employee by the head of department or officer of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other persons. There is really no repugnance between the Civil Service Decree and the Magna Carta for Public School Teachers. Although the Civil Service Decree gives the head of department or the regional director jurisdiction to investigate and decide disciplinary matters, the fact is that such power is exercised through committees. In cases involving public school teachers, the Magna Carta provides that the committee be constituted as follows: Sec. 9. Administrative Charges. - Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, that where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. Indeed, in the case at bar, neither the DECS [s]ecretary nor the DECS-NCR regional director personally conducted the investigation but entrusted it to a committee composed of a division supervisor, secondary and elementary school teachers, and consultants. But there was no representative of a teachers organization. This is a serious flaw in the composition of the committee because the provision for the representation of a teachers organization is intended by law for the protection of the rights of teachers facing administrative charges. There is thus nothing in the Magna Carta that is in any way inconsistent with the Civil Service Decree insofar as procedures for investigation is concerned. To the contrary, the Civil Service Decree, [S]ec. 38(b) affirms the Magna Carta by providing that the respondent in an administrative case may ask for a formal investigation, which was what the teachers did in this case by questioning the absence of a representative of a teachers organization in the investigating committee. The administrative committee considered the teachers to have waived their right to a hearing after the latters

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counsel walked out of the preliminary hearing. The committee should not have made such a ruling because the walk out was staged in protest against the procedures of the committee and its refusal to give the teachers counsel a copy of the guidelines. The committee concluded its investigation and ordered the dismissal of the teachers without giving the teachers the right to full access of the evidence against them and the opportunity to defend themselves. Its predisposition to find petitioner-appellees guilty of the charges was in fact noted by the Supreme Court when in its resolution in G.R. No. 101943 (Rosario Septimo v. Judge Martin Villarama, Jr.) it stated: The facts and issues in this case are similar to the facts and issues in Hon. Isidro Cario, et al. v. Hon. Carlos C. Ofilada, et al. G.R. No. 100206, August 22, 1961. As in the Cario v. Ofilada case, the officials of the Department of Culture and Education are predisposed to summarily hold the petitioners guilty of the charges against them. In fact, in this case Secretary Cario, without awaiting formal administrative procedures and on the basis of reports and implied admissions found the petitioners guilty as charged and dismissed them from the service in separate decisions dated May 16, 1991 and August 6, 1991. The teachers went to court. The Court dismissed the case.[19] Furthermore, this Court sees no valid reason to disregard the factual findings and conclusions of the Court of Appeals. It is not our function to assess and evaluate all over again the evidence, testimonial and documentary, adduced by the parties particularly where, such as here, the findings of both the trial court and the appellate court coincide.[20] It is as clear as day to us that the Court of Appeals committed no reversible error in affirming the trial courts decision setting aside the questioned orders of petitioners; and ordering the unqualified reinstatement of private respondents and the payment to them of salaries, allowances, bonuses and other benefits that accrued to their benefit during the entire duration of their suspension or dismissal.[21] Because the administrative proceedings involved in this case are void, no delinquency or misconduct may be imputed to private respondents. Moreover, the suspension or dismissal meted on them is baseless. Private respondents should, as a consequence, be reinstated[22] and awarded all monetary benefits that may have accrued to them during the period of their unjustified suspension or dismissal.[23] This Court will never countenance a denial of the fundamental right to due process, which is a cornerstone of our legal system. WHEREFORE, premises considered, the petition is hereby DENIED for its utter failure to show any reversible error on the part of the Court of Appeals. The assailed Decision is thus AFFIRMED. SO ORDERED. Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.

G.R. No. 110954 May 31, 1995 DELFIN N. DIVINAGRACIA, JR., AND ALEXIS D. SAN LUIS, petitioners, vs. HON. PATRICIA A. STO. TOMAS, RAMON P. ERENETA, JR., and PRESCILLA B. NACARIO, respondents. BELLOSILLO, J.: The primordial purpose of our civil service laws is to establish and maintain a merit system in the selection of public officers and employees without regard to sex, color, social status or political affiliation. But there are times when appointments to public office are dominated by partisan favoritism and patronage, where tenurial rights are subject to the whims of officialdom. On 1 August 1980 Filomena R. Mancita was appointed Municipal Development Coordinator (MDC) of Pili, Camarines Sur, in a permanent capacity. On 14 March 1983 when the Local Government Code took effect, the 1 office was renamed Municipal Planning and Development Coordinator (MPDC). On 28 March 1983 the 2 Sangguniang Bayan of Pili approved Resolution No. 38 creating and organizing the Office of MPDC. Mancita held over the position until 1985. On 1 January 1985 the Joint Commission on Local Government Personnel Administration approved the 3 reorganization plan and staffing pattern of the Municipality of Pili. In a letter dated 17 June 1985 Mayor Anastacio M. Prila notified Mancita that her services were being terminated effective at the close of office hours on 1 July 1985 on the ground that the Office of MDC was abolished as a result of the reorganization of the local government of Pili. Private respondent Prescilla B. Nacario who was then the Municipal Budget Officer was 4 appointed MPDC on 10 June 1985 to take effect on 1 July 1985. Nacario was replaced by Digna Isidro as Municipal Budget Officer. Isidro was succeeded a year later by Eleanor Villarico who served until 1990. In 1988 the Local Government Officers Services, which included the local Budget Office, was nationalized and placed under the Department of Budget and Management. As a result, the authority to appoint the Budget Officers of the different local government units devolved upon the Secretary of the Budget. When Villarico resigned on 1 March 1990 the Budget Office became vacant until 30 September 1991, or for more than a year,

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owing to the lack of a qualified candidate that the Secretary of the Budget could appoint. In the meantime, Juan Batan, the former Municipal Budget Officer of Baao, Camarines Sur, was appointed Officer-in-Charge of the Municipal Budget Office of Pili. He was later replaced by Francisco Deocareza, the former Budget Officer of 5 Naga City, in the same capacity. On 1 October 1991, petitioner Alexis D. San Luis, Cashier II of the Department of Environment and Natural Resources (DENR), was temporarily appointed Municipal Budget Officer of Pili by Secretary Guillermo N. Carague of the Department of Budget and Management. When control over the Local Government Officers Services was returned to the local government units by virtue of the Local Government Code of 1991 (R.A. 7160 as implemented by E.O. 503), San Luis was reappointed to the same position on 22 June 1992, this time in a 6 permanent capacity, by petitioner Delfin N. Divinagracia, Mayor of Pili. San Luis started in the career civil service in 1977 as a casual clerk in the DENR, rising from the ranks until he was appointed Cashier II based in Legaspi City, the position he was holding when appointed Municipal Budget 7 Officer of Pili. 8 Meanwhile, Mancita appealed her termination to the Merit Systems and Protection Board (MSPB). On 20 June 1989 the MSPB declared her separation from the service illegal, holding that the Office of the Municipal Development Coordinator was abolished by the Local Government Code of 1991 and not by the reorganization of the Municipality of Pili as claimed by Mayor Prila. According to the MSPB, Mancita was in fact qualified for the newly-created position of MPDC since the powers and duties of the two positions were essentially the same. The MSPB ordered Mayor Divinagracia to reinstate Mancita to the position of MPDC or to an equivalent position, and 9 to pay her backwages from the date of her separation. The decision of MSPB was appealed by Mayor Divinagracia to the Civil Service Commission but the appeal was dismissed on 16 July 1990 per CSC Resolution 10 No. 90-657. On 15 October 1990, Mayor Divinagracia informed private respondent Nacario that she was being relieved of her position as MPDC effective 16 November 1990 in order to comply with the MSPB decision to reinstate Mancita as MPDC. On 8 November 1990 private respondent Prescilla B. Nacario filed a Petition for Declaratory Relief and Prohibition with Preliminary Injunction with the Regional Trial Court of Pili, Br. 31, docketed as Civil Case No. P17819, against CSC Chairperson Patricia A. Sto. Tomas, Mayor Delfin N. Divinagracia, Jr., Elium Banda, Regional Director of CSC in Region 5, and Filomena R. Mancita, praying for the annulment of CSC Resolution No. 90-657. Presiding Judge Ceferino P. Barcinas of Br. 31 issued a temporary restraining order enjoining the implementation of the questioned CSC resolution and set the date for the hearing of the application for preliminary injunction. Mancita filed a motion to dismiss on the ground that the trial court had no jurisdiction over the subject matter. Her motion was denied. Mancita then filed a special civil action for certiorari under Rule 65 before this Court questioning the denial of her motion. Through Mr. Justice Teodoro R. Padilla we granted the petition and held that the lower court had no jurisdiction over the case since all decisions, orders and resolutions of the Civil Service Commission were subject to review only by this Court on certiorari under Rule 65 of the 11 Rules of Court. While the petition of Mancita was pending with us, Nacario sent a query to public respondent Commission asking about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. In a letter dated 8 December 1992 public respondent opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination, and since she was the former Municipal 12 Budget Officer she had the right to return to that position. On 15 March 1993 Mayor Divinagracia wrote to CSC Chairperson Patricia A. Sto. Tomas seeking a reconsideration of her opinion of 8 December 1992. Mayor Divinagracia explained the factual circumstances behind the ouster of Mancita and the resulting appointment of Nacario to the position of MPDC, arguing that San Luis was validly appointed by the Secretary of the Budget and confirmed by the CSC, hence, entitled to security 13 of tenure. On 27 May 1993 public respondent issued CSC Resolution No. 93-1996 denying the request of Mayor Divinagracia for a reconsideration. Upholding Nacario's right to security of tenure the CSC held that the reinstatement of Mancita to the position of MPDC could not be a valid cause for the termination of Nacario. Public respondent relied on Sec. 13, Rule VI, of the Omnibus Rules Implementing Book V of E.O. No. 292, otherwise known as the Revised Administrative Code of 1978 in directing the restoration of Nacario to her former position. Sec. 13 mandates the return of an appointee, in a chain of promotions, to his former position once his appointment is subsequently disapproved. Petitioners have come to us for relief praying that CSC Resolution No. 93-1996 be nullified for having been issued with grave abuse of discretion. On 5 October 1993, upon motion of petitioners, this Court issued a status 14 quo ante order enjoining the enforcement of the questioned CSC order. Petitioners contend that Sec. 13, Rule VI, of the Omnibus Rules Implementing the Revised Administrative Code (E.O. 292) does not apply to the present case because the rule covers only appointments in a chain of promotions and not where a public officer was merely transferred to another position of the same rank, grade and level.

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Petitioners further contend that Nacario was deemed to have vacated her position as Budget Officer when she accepted her appointment as MPDC considering that there were several appointments made to the Budget 15 Office in the past eight (8) years since her transfer. According to petitioners, San Luis was also denied his right to be heard when public respondent ordered him to vacate his position without affording him an opportunity to 16 contest the claim of Nacario thus violating his constitutional right to due process. Upon the other hand, private respondent claims that she did not voluntarily apply for transfer from the Budget Office to the Office of MPDC but was constrained to "accept" the new position because of Mayor Prila. She was, in her own words, "a passive participant in the movement of personnel" in the municipal government of Pili having acted as a "subservient public official" in assuming the position of MPDC. Nacario maintains that her "acceptance" of the position of MPDC which she admits is of the same rank, salary grade and level was motivated by her respect for Mayor Prila who was then her superior. In fact, according to her, she applied for the position of Budget Officer with the Department of Budget and Management while she 17 was MPDC indicating that she did not abandon or relinquish her former position as alleged by petitioners. For their part, public respondents Sto. Tomas and Ereneta, Jr., insist on the application to the present case of the automatic reversion rule provided under Sec. 13, Rule VI, of the Omnibus Rules Implementing Book V of E.O. 292. They submit that the term "chain of promotions" must not be interpreted in a literal, rigid and narrow sense but must be construed liberally in favor of private respondent who merely accepted the position of MPDC 18 to accommodate her superior unaware that her new appointment thereto would be infirmed. We deny the petition. Petitioner Alexis D. San Luis cannot hold on to the position of Municipal Budget Officer. On the other hand, respondent Prescilla B. Nacario who is protected by law in her security of tenure should be reinstated thereto. Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292 provides that Sec. 13. All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in lower positions and automatically restores them to their former positions. However, the affected persons are entitled to the payment of salaries for services actually rendered at a rate fixed in their promotional appointments. Under the aforecited section, before a public official or employee can be automatically restored to her former position, there must first be a series of promotions; second, all appointments are simultaneously submitted to the CSC for approval; and third, the CSC disapproves the appointment of a person proposed to a higher position. The essential requisites prescribed under Sec. 13 do not avail in the case at bench. To start with, the movement of Nacario from the Budget Office to the Office of MPDC cannot be considered a promotion for the term 19 connotes an increase in duties and responsibilities as well as a corresponding increase in salary. Conformably 20 therewith, we find the movement of Nacario one of lateral transfer. A careful examination of the qualifications, powers and duties of a Budget Officer and an MPDC provided under Secs. 475 and 476 of the Local Government Code of 1991 shows that the latter office is not burdened with more duties and responsibilities than the former. It is also interesting to note that there was, on the contrary, a 21 reduction in the basic salary of Nacario, from P30,505.20 per annum as Budget Officer to P27,732.00 per 22 annum as MPDC. Moreover, private respondent admitted in her comment and in her memorandum that the 23 position of Budget Officer and MPDC were of the same rank, salary grade and level. This was attested to by Vilma J. Martus, the Human Resource Management Officer of Pili, who certified that per Position Allocation List 24 (PAL) of the municipality the Budget Officer and MPDC are of equal level. Aside from the lack of a series of promotions, the other two (2) requisites are not also present, i.e., the appointments of the parties concerned were not simultaneously submitted to the CSC for approval the appointment (permanent) of Nacario was approved by the CSC on 13 June 1985 while the appointment (permanent) of San Luis was approved by the CSC on 9 February 1993 and, the ouster of Nacario from the Office of MPDC was a result of the MSPB decision directing the reinstatement of Mancita and not because the CSC disapproved her appointment as MPDC. While the contemporaneous construction of Sec. 13 by the CSC is entitled to great weight and respect, this 25 Court shall depart from such interpretation when it is clearly erroneous or when there is no ambiguity in the 26 rule, as in the instant case, and yield to the letter of the law taking its terms in their plain, ordinary and popular 27 meaning. Let us now examine whether the lateral transfer of private respondent was validly made in accordance with Sec. 5, par. 3, Rule VII, Omnibus Rules Implementing Book V of E.O. 292. If not, then private respondent is entitled to be protected in her security of tenure. Sec. 5, par. 3, of Rule VII provides that Transfer shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the commission. (emphasis supplied)

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According to Nacario she never applied or sought appointment by transfer to the position of MPDC since she 28 even had no prior knowledge of her appointment. She assumed the new position only in order to comply with the move of Mayor Prila to supposedly "reorganize" the municipal government of Pili. Nacario did not question her transfer because she revered the mayor and did not in any way intend to displease him. The submissive attitude displayed by private respondent towards her transfer is understandable. Although Nacario was not informed of the reasons therefor she did not complain to the mayor or appeal her case to the CSC if in fact the same was not made in the interest of public service. For it is not common among local officials, even those permanent appointees who are more secured and protected in their tenurial right, to oppose or question the incumbent local executive on his policies and decisions no matter how improper they may seem. 29 Even as early as 1968, in Nemenzo v. Sabillano, we held that There are altogether too many cases of this nature, wherein local elective officials, upon assumption of office, wield their new-found power indiscriminately by replacing employees with their own proteges, regardless of the laws and regulations governing the civil service. Victory at the polls should not be taken as authority for the commission of such illegal acts. Private respondent was the Budget Officer of Pili for almost eight (8) years from August 1980 until her transfer in 30 July, 1988. Nacario appeared to be satisfied with her work and felt fulfilled as Budget Officer until Mayor Prila appointed her MPDC to fill up the position, which was not even vacant at that time. It was only seven (7) days after Nacario's appointment when Mayor Prila informed Mancita that her services were being terminated. Simply put, Mayor Prila was so determined in terminating Mancita that he conveniently pre-arranged her replacement by Nacario. Although Nacario continued to discharge her duties, this did not discourage her from trying to regain her former position. Undaunted, she applied with the Office of the Budget Secretary for the position of Budget Officer upon learning that it was placed under the Department of Budget and Management. She was not however successful. 31 In Sta. Maria v. Lopez we distinguished between a transfer and a promotion and laid down the prerequisites of a valid transfer thus A transfer is a "movement from one position to another which is of equivalent rank, level and salary, without break in service." Promotion is the "advancement from one position to another with an increase in duties and responsibilities as authorized by law, and is usually accompanied by an increase in salary" . . . A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to "lure the employee away from his permanent position," cannot be done without the employees' consent. For that would constitute removal from office. Indeed, no permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position. (emphasis provided) The rule that unconsented transfers amount to removal is not however without exception. As we further said in Sta. Maria, Concededly there are transfers which do not amount to removal. Some such transfers can be effected without the need for charges being proffered, without trial or hearing, and even without the consent of the employee . . . . The clue to such transfers may be found in the "nature of the appointment." Where the appointment does not indicate a specific station, an employee may be transferred or assigned provided the transfer affects no substantial change in title, rank and salary . . . . Such a rule does not proscribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency . . . . Neither does illegality attach to the transfer or reassignment of an officer pending the determination of an administrative charge against him; or to the transfer of an employee, from his assigned station to the main office, effected in good faith and in the interest of the service pursuant to Sec. 32 of the Civil Service Act. Clearly then, the unconsented lateral transfer of Nacario from the Budget Office to the Office of MPDC was arbitrary for it amounted to removal without cause hence, invalid as it is anathema to security of tenure. When Nacario was extended a permanent appointment on 1 August 1980 and she assumed the position, she acquired a legal, not merely an equitable, right to the position. Such right to security of tenure is protected not only by 32 statute, but also by the Constitution and cannot be taken away from her either by removal, transfer or by 33 revocation of appointment, except for cause, and after prior notice. The guarantee of security of tenure is an important object of the civil service system because it affords a faithful employee permanence of employment, at least for the period prescribed by law, and frees the employee from 34 the fear of political and personal prejudicial reprisal. Consequently, it could not be said that Nacario vacated her former position as Budget Officer or abdicated her right to hold the office when she accepted the position of MPDC since, in contemplation of law, she could not be deemed to have been separated from her former position or to have terminated her official relations therewith notwithstanding that she was actually discharging the functions and exercising the powers of MPDC. The 35 principle of estoppel, unlike in Manalo v. Gloria, cannot bar her from returning to her former position because of the indubitable fact that private respondent reluctantly and hesitantly accepted the second office. The element

14

of involuntariness tainted her lateral transfer and invalidated her separation from her former position. For another thing, the appointment of San Luis as Budget Officer carried with it a condition. At the back of his appointment is inscribed the notation Sa kondisyon nasa ayos ang pagkakatiwalag sa tungkulin ng dating nanunungkulan, which when translated means "Provided that the separation of the former incumbent is in order." Considering that the separation of Nacario who was the former incumbent was not in order, San Luis should relinquish his position in favor of private respondent Nacario. This is, of course, without prejudice to San Luis' right to be reinstated to his former position as Cashier II of the DENR, he being also a permanent appointee equally guaranteed security of tenure. A final word. Petitioners cannot claim that they have been denied due process of law by public respondent. The records reveal that petitioners had the opportunity to question the adverse opinion rendered by CSC 36 Chairperson Sto. Tomas in a letter dated 15 March 1993. The correspondence which was in the nature of a motion for reconsideration constitutes sufficient opportunity for petitioners who felt aggrieved to inform the CSC of their side of the controversy. What is sought to be safeguarded in the application of due process is not the 37 lack of previous notice but the denial of opportunity to be heard. Before we write finis to this ponencia, we remind those public officials who flaunt their authority and those similarly inclined to faithfully abide by the Constitution and observe honestly and in good faith the tenurial security of public servants who serve the government with sincerity and dedication. They should not be moved or removed from their established positions without any lawful cause and pushed at will like pawns on the bureaucratic chessboard. WHEREFORE, premises considered, the petition is DISMISSED. CSC Resolution No. 93-1996 is AFFIRMED insofar as it orders the reinstatement of PRESCILLA B. NACARIO to the Office of Municipal Budget Officer of Pili, Camarines Sur. Accordingly, petitioner Mayor Delfin N. Divinagracia, or whoever is now the incumbent Mayor of Pili or acting in his behalf, is ORDERED to reinstate private respondent Prescilla B. Nacario immediately to the position of Municipal Budget Officer of Pili and petitioner Alexis D. San Luis to vacate the said office without prejudice to regaining his former position in the government if legally feasible and warranted. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Romero, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Quiason, J., is on leave.

Separate Opinions DAVIDE, Jr., J., dissenting: I respectfully submit that it is private respondent Prescilla B. Nacario who should bear the prejudicial consequence of the reinstatement of Filomena R. Mancita to the position of Municipal Planning and Development Coordinator (MPDC), formerly Municipal Development Coordinator (MDC), and that in restoring Nacario to the position of Municipal Budget Officer (MBO) and ousting therefrom petitioner Alexis San Luis, the public respondent acted with grave abuse of discretion. I gather from the ponencia the following facts: Mancita was appointed to the position of MDC of Pili, Camarines Sur, on 1 August 1980. The name of this office was changed to MPDC in March 1983. On 10 June 1985, Mayor Anastacio M. Prila of Pili appointed Nacario, who was then holding the position of MBO of Pili, as MPDC. This appointment was to take effect on 1 July 1985. Nacario accepted the appointment and assumed office. In his letter of 17 June 1985, Mayor Prila notified Mancita that her services as MDC would be terminated effective at the close of business hours on 1 July 1985 on the ground that the office of MDC was abolished as a result of the reorganization of the local government of Pili. Nacario assumed her new office over the objection of Mancita who did not accept her termination from the service and, instead, forthwith appealed to the Merit Systems Protection Board (MSPB). In its decision of 20 June 1989, the MSPB declared illegal Mancita's termination from the service, ruled that she was qualified for the position of MPDC, and ordered the new mayor, petitioner Delfin N. Divinagracia, Jr., to reinstate Mancita to the position of MPDC with back salaries. Divinagracia's appeal to the Civil Service Commission (CSC) was dismissed on 16 July 1990 per CSC Resolution No. 90-657. On 15 October 1990, Divinagracia informed Nacario that her services as MPDC would be terminated effective 16 November 1990 in compliance with the decision of the MSPB. Nacario would not accept her termination. However, instead of going to the CSC for a possible reconsideration of CSC Resolution No. 90-657, she filed with the Regional Trial Court (RTC) of Camarines Sur a petition for declaratory relief and prohibition with preliminary injunction (Civil Case No. P-17819) against CSC Chairperson Patricia A. Sto. Tomas, Mayor

15

Divinagracia, the CSC Regional Director, and Filomena Mancita. She prayed for the annulment of CSC Resolution No. 90-657. Mancita's motion to dismiss on the ground of lack of jurisdiction having been denied, she came to this Court via a special civil action for certiorari, G.R. No. 98120, which this Court granted in its decision of 22 December 1992 (216 SCRA 772[1992]). This Court held that the trial court had no jurisdiction over Civil Case No. P-17819 because decisions, orders, or rulings of the CSC are subject to review only by this Court under Rule 65 of the Rules of Court. During the pendency of G.R. No. 98120, Nacario sent a query to the CSC asking about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. In a letter dated 8 December 1990, the CSC opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination and since she was the former MBO, she has the right to return to the position of MBO. In his letter of 15 March 1993, Divinagracia sought to reconsider the opinion for the reason that petitioner San Luis was validly appointed as MBO by the Secretary of Budget and Management and that this appointment was confirmed by the CSC. In its CSC Resolution No. 93-1996 of 27 May 1993, the CSC denied the request and upheld Nacario's right to security of tenure as MBO pursuant to Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292. This Section mandates the return of an appointment, in a chain of promotions, to his former position once his appointment is subsequently disapproved. As regards her former office of MBO which Nacario vacated, several persons held it after she had assumed office as MPDC pursuant to the 10 June 1985 appointment extended her by Mayor Prila. She was first replaced by Digna Isidro. A year later, Digna was succeeded by Eleonor Villarico who served until 1 March 1990 when she resigned. It may be recalled that in 1988 the Local Officers Services, which included the local budget office, was nationalized and placed under the Department of Budget and Management (DBM). Consequently, the authority to appoint the MBOs devolved on the Secretary of Budget and Management. Owing to the lack of qualified candidates for the position, the vacancy lasted until 30 September 1991. In the meantime, Juan Batan, the former MBO of Baao, Camarines Sur, was appointed officer-in-charge. He was later replaced, also in such capacity, by Francisco Deocareza, the former MBO of Naga City. On 1 October 1991, Secretary Guillermo Carague of the DBM appointed in a temporary capacity petitioner Alexis San Luis, then Cashier II of the Department of Environment and Natural Resources (DENR), as MBO of Pili. On 22 June 1992, after control over the Local Government Officers Services was returned to the local government units concerned by virtue of the Local Government Code of 1991 (R.A. 7160) as implemented by E.O. No. 503, San Luis was re-appointed, in a permanent capacity, as MBO of Pili. From the foregoing facts, it is clear that private respondent Nacario voluntarily accepted her appointment as MPDC, thereby effectively relinquishing and abandoning her position as MBO. She held the new position continuously and uninterruptedly, even peacefully, until, at the earliest, 15 October 1990 when she was told to vacate it to comply with the decision of the MSPB reinstating Mancita. She was, as well, fully aware of the fact that several persons had succeeded her as MBO. Nacario's explanation that she assumed the new position only in order to comply with the move of Mayor Prila to reorganize the municipal government of Pili is implausible and simply incredible. On the contrary, she appeared to have relished the prestige and ascendancy of her new office and the challenge of a new role as coordinator of planning and development in the municipality. If indeed she was "forced" to accept the new position, then she could have requested the new mayor, Mayor Divinagracia, to return her to the position of MBO. I find, as well, the conclusion in the majority opinion that her transfer to the position of MPDC was an "unconsented lateral transfer" to be without factual basis. It should be noted that there was no reception of evidence before the CSC. As earlier stated, Nacario merely sent to the CSC a letter-query during the pendency of Mancita's petition in this Court (G.R. No. 98120) inquiring about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. The letter-query seems to be a last-ditch effort at damage control after Nacario realized her fatal mistake of invoking the regular court's jurisdiction to set aside the CSC resolution reinstating Mancita. By then, however, Nacario had lost her period to seek relief from CSC Resolution No. 90-657. Besides, since the CSC was aware of the pendency of G.R. No. 98120, it should not have entertained the letter-query. Any suggestion of involuntariness in Nacario's acceptance of her appointment as MPDC appears only in her memorandum. This Court should not accept it as the gospel truth. On the other hand, the appointment of San Luis as MPDC was regularly done and without any protest from Nacario. If the latter honestly believed that she was illegally and arbitrarily transferred to the position of MPDC, she should have protested the appointment of San Luis. Howsoever viewed, Nacario had lost her position as MBO of Pili by having voluntarily accepted her appointment as MPDC and voluntarily and faithfully serving the new office. Even if the majority's theory of "unconsented

16

lateral transfer" was to be accepted, Nacario must further be barred on the ground of estoppel. If there is any party whose security of tenure should be protected, it is San Luis. Hence, he should not be given his walking papers. The disposition in the majority opinion that the dismissal is without prejudice to regaining his former position in the government if legally feasible is inconsistent with its conclusion that Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292 on appointments involved in a chain of promotions is inapplicable to this case. I vote then to grant the petition. Regalado, J., concurs.

Separate Opinions DAVIDE, Jr., J., dissenting: I respectfully submit that it is private respondent Prescilla B. Nacario who should bear the prejudicial consequence of the reinstatement of Filomena R. Mancita to the position of Municipal Planning and Development Coordinator (MPDC), formerly Municipal Development Coordinator (MDC), and that in restoring Nacario to the position of Municipal Budget Officer (MBO) and ousting therefrom petitioner Alexis San Luis, the public respondent acted with grave abuse of discretion. I gather from the ponencia the following facts: Mancita was appointed to the position of MDC of Pili, Camarines Sur, on 1 August 1980. The name of this office was changed to MPDC in March 1983. On 10 June 1985, Mayor Anastacio M. Prila of Pili appointed Nacario, who was then holding the position of MBO of Pili, as MPDC. This appointment was to take effect on 1 July 1985. Nacario accepted the appointment and assumed office. In his letter of 17 June 1985, Mayor Prila notified Mancita that her services as MDC would be terminated effective at the close of business hours on 1 July 1985 on the ground that the office of MDC was abolished as a result of the reorganization of the local government of Pili. Nacario assumed her new office over the objection of Mancita who did not accept her termination from the service and, instead, forthwith appealed to the Merit Systems Protection Board (MSPB). In its decision of 20 June 1989, the MSPB declared illegal Mancita's termination from the service, ruled that she was qualified for the position of MPDC, and ordered the new mayor, petitioner Delfin N. Divinagracia, Jr., to reinstate Mancita to the position of MPDC with back salaries. Divinagracia's appeal to the Civil Service Commission (CSC) was dismissed on 16 July 1990 per CSC Resolution No. 90-657. On 15 October 1990, Divinagracia informed Nacario that her services as MPDC would be terminated effective 16 November 1990 in compliance with the decision of the MSPB. Nacario would not accept her termination. However, instead of going to the CSC for a possible reconsideration of CSC Resolution No. 90-657, she filed with the Regional Trial Court (RTC) of Camarines Sur a petition for declaratory relief and prohibition with preliminary injunction (Civil Case No. P-17819) against CSC Chairperson Patricia A. Sto. Tomas, Mayor Divinagracia, the CSC Regional Director, and Filomena Mancita. She prayed for the annulment of CSC Resolution No. 90-657. Mancita's motion to dismiss on the ground of lack of jurisdiction having been denied, she came to this Court via a special civil action for certiorari, G.R. No. 98120, which this Court granted in its decision of 22 December 1992 (216 SCRA 772[1992]). This Court held that the trial court had no jurisdiction over Civil Case No. P-17819 because decisions, orders, or rulings of the CSC are subject to review only by this Court under Rule 65 of the Rules of Court. During the pendency of G.R. No. 98120, Nacario sent a query to the CSC asking about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. In a letter dated 8 December 1990, the CSC opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination and since she was the former MBO, she has the right to return to the position of MBO. In his letter of 15 March 1993, Divinagracia sought to reconsider the opinion for the reason that petitioner San Luis was validly appointed as MBO by the Secretary of Budget and Management and that this appointment was confirmed by the CSC. In its CSC Resolution No. 93-1996 of 27 May 1993, the CSC denied the request and upheld Nacario's right to security of tenure as MBO pursuant to Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292. This Section mandates the return of an appointment, in a chain of promotions, to his former position once his appointment is subsequently disapproved. As regards her former office of MBO which Nacario vacated, several persons held it after she had assumed office as MPDC pursuant to the 10 June 1985 appointment extended her by Mayor Prila. She was first replaced by Digna Isidro. A year later, Digna was succeeded by Eleonor Villarico who served until 1 March 1990 when she resigned. It may be recalled that in 1988 the Local Officers Services, which included the local budget office,

17

was nationalized and placed under the Department of Budget and Management (DBM). Consequently, the authority to appoint the MBOs devolved on the Secretary of Budget and Management. Owing to the lack of qualified candidates for the position, the vacancy lasted until 30 September 1991. In the meantime, Juan Batan, the former MBO of Baao, Camarines Sur, was appointed officer-in-charge. He was later replaced, also in such capacity, by Francisco Deocareza, the former MBO of Naga City. On 1 October 1991, Secretary Guillermo Carague of the DBM appointed in a temporary capacity petitioner Alexis San Luis, then Cashier II of the Department of Environment and Natural Resources (DENR), as MBO of Pili. On 22 June 1992, after control over the Local Government Officers Services was returned to the local government units concerned by virtue of the Local Government Code of 1991 (R.A. 7160) as implemented by E.O. No. 503, San Luis was re-appointed, in a permanent capacity, as MBO of Pili. From the foregoing facts, it is clear that private respondent Nacario voluntarily accepted her appointment as MPDC, thereby effectively relinquishing and abandoning her position as MBO. She held the new position continuously and uninterruptedly, even peacefully, until, at the earliest, 15 October 1990 when she was told to vacate it to comply with the decision of the MSPB reinstating Mancita. She was, as well, fully aware of the fact that several persons had succeeded her as MBO. Nacario's explanation that she assumed the new position only in order to comply with the move of Mayor Prila to reorganize the municipal government of Pili is implausible and simply incredible. On the contrary, she appeared to have relished the prestige and ascendancy of her new office and the challenge of a new role as coordinator of planning and development in the municipality. If indeed she was "forced" to accept the new position, then she could have requested the new mayor, Mayor Divinagracia, to return her to the position of MBO. I find, as well, the conclusion in the majority opinion that her transfer to the position of MPDC was an "unconsented lateral transfer" to be without factual basis. It should be noted that there was no reception of evidence before the CSC. As earlier stated, Nacario merely sent to the CSC a letter-query during the pendency of Mancita's petition in this Court (G.R. No. 98120) inquiring about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. The letter-query seems to be a last-ditch effort at damage control after Nacario realized her fatal mistake of invoking the regular court's jurisdiction to set aside the CSC resolution reinstating Mancita. By then, however, Nacario had lost her period to seek relief from CSC Resolution No. 90-657. Besides, since the CSC was aware of the pendency of G.R. No. 98120, it should not have entertained the letter-query. Any suggestion of involuntariness in Nacario's acceptance of her appointment as MPDC appears only in her memorandum. This Court should not accept it as the gospel truth. On the other hand, the appointment of San Luis as MPDC was regularly done and without any protest from Nacario. If the latter honestly believed that she was illegally and arbitrarily transferred to the position of MPDC, she should have protested the appointment of San Luis. Howsoever viewed, Nacario had lost her position as MBO of Pili by having voluntarily accepted her appointment as MPDC and voluntarily and faithfully serving the new office. Even if the majority's theory of "unconsented lateral transfer" was to be accepted, Nacario must further be barred on the ground of estoppel. If there is any party whose security of tenure should be protected, it is San Luis. Hence, he should not be given his walking papers. The disposition in the majority opinion that the dismissal is without prejudice to regaining his former position in the government if legally feasible is inconsistent with its conclusion that Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292 on appointments involved in a chain of promotions is inapplicable to this case. I vote then to grant the petition. Regalado, J., concurs.

ALEXIS C. CANONIZADO, EDGAR DULA TORRES, and ROGELIO A. PUREZA, Petitioners, v. HON.ANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN, as Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIA U. CRISTOBAL, Respondents. DECISION GONZAGA_REYES, J.: The central issue posed before this Court in the present case is the constitutionality of Republic Act No. 8551 1 (RA 8551), otherwise known as the "Philippine National Police Reform and Reorganization Act of 1998," by virtue of which petitioners herein, who were all members of the National Police Commission (NAPOLCOM), were separated from office. Petitioners claim that such law violates their constitutionally guaranteed right to security of tenure.

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The NAPOLCOM was originally created under Republic Act No. 6975 (RA 6975), entitled "An Act Establishing The Philippine National Police Under A Reorganized Department Of The Interior And Local Government, And For Other Purposes." Under RA 6975, the members of the NAPOLCOM were petitioners Edgar Dula Torres, Alexis C. Canonizado, Rogelio A. Pureza and respondent Jose Percival L. Adiong. Dula Torres was first appointed to the NAPOLCOM on January 8, 1991 for a six year term. He was re-appointed on January 23, 1997 for another six years. Canonizado was appointed on January 25, 1993 to serve the unexpired term of another Commissioner which ended on December 31, 1995. On August 23, 1995, Canonizado was re-appointed for another six years. Pureza was appointed on January 2, 1997 for a similar term of six years. Respondent Adiongs appointment to the NAPOLCOM was issued on July 23, 1996. None of their terms had expired at the time the 2 amendatory law was passed. On March 6, 1998, RA 8551 took effect; it declared that the terms of the current Commissioners were deemed as expired upon its effectivity. Pursuant thereto, President Ramos appointed Romeo L. Cairme on March 11, 1998 as a member of the NAPOLCOM for a full six year term. On the same date, Adiong, was given a term extension of two years since he had served less than two years of his previous term. Cairme and Adiong both 3 took their oaths of office on April 6, 1998. Completing the membership of the NAPOLCOM are Leo S. Magahum and Cleofe M. Factoran, who were appointed by President Estrada on June 30, 1998 and who took their oaths of 4 office on July 2, 1998. According to petitioners, sections 4 and 8 of RA 8551 are unconstitutional. Section 4, amending section 13 of Republic Act No. 6975, provides SEC. 13. Creation and Composition. A National Police Commission, hereinafter referred to as the Commission, is hereby created for the purpose of effectively discharging the functions prescribed in the Constitution and provided in this Act. The Commission shall be an agency attached to the Department for policy and program coordination. It shall be composed of a Chairperson, four (4) regular Commissioners, and the Chief of the PNP as ex-officio member. Three (3) of the regular Commissioners shall come from the civilian sector who are neither active nor former members of the police or military, one (1) of whom shall be designated as vice chairperson by the President. The fourth regular Commissioner shall come from the law enforcement sector either active or retired: Provided, That an active member of a law enforcement agency shall be considered resigned from said agency once appointed to the Commission: Provided further, That at least one (1) of the Commissioners shall be a woman. The Secretary of the Department shall be the ex-officio Chairperson of the Commission, while the Vice Chairperson shall act as the executive officer of the Commission. Meanwhile, section 8 states that Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired which shall constitute a bar to their reappointment or an extension of their terms in the Commission except for current Commissioners who have served less than two (2) years of their terms of office who may be appointed by the President for a maximum term of two (2) years. Petitioners argue that their removal from office by virtue of section 8 of RA 8551 violates their security of tenure. It is beyond dispute that petitioners herein are members of the civil service, which embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled 5 corporations with original charters. As such, they cannot be removed or suspended from office, except for 6 cause provided by law. The phrase "except for cause provided by law" refers to " reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely causes which 7 the appointing power in the exercise of discretion may deem sufficient." Public respondents insist that the express declaration in section 8 of RA 8551 that the terms of petitioners offices are deemed expired discloses the legislative intent to impliedly abolish the NAPOLCOM created under RA 6975 pursuant to a bona fide reorganization. In support of their theory, public respondents cite the various changes introduced by RA 8551 in the functions, composition and character of the NAPOLCOM as proof of Congress intention to abolish the body created under RA 6975 in order to replace it with a new NAPOLCOM which is more civilian in nature, in compliance with the constitutional mandate. Petitioners posit the theory that the abolition of 8 petitioners offices was a result of a reorganization of the NAPOLCOM allegedly effected by RA 8551. d 9 The creation and abolition of public offices is primarily a legislative function. It is acknowledged that Congress 10 may abolish any office it creates without impairing the officers right to continue in the position held and that 11 12 such power may be exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, 13 or in order to circumvent the constitutional security of tenure of civil service employees. An abolition of office connotes an intention to do away with such office wholly and permanently, as the word 14 "abolished" denotes. Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul[15] we said: It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure. [De la Lanna v. Alba, 112 SCRA 294 (1982)] However, in this case, the renaming and restructuring of the PGH

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and its component units cannot give rise to a valid and bona fide abolition of the position of PGH Director. This is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith. [Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 (1990)] We hereby apply the principle enunciated in Cesar Z. Dario vs. Hon. Salvador M.n [176 SCRA 84 (1989)] that abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the creation of a UP-PGH Medical Center Director are valid, the removal of the incumbent is still not justified for the reason that the duties and functions of the two positions are basically the same. (underscoring supplied) 16 This was also our ruling in Guerrero v. Arizabal, wherein we declared that the substantial identity in the functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a reorganization. We come now to the case at bench. The question that must first be resolved is whether or not petitioners were removed by virtue of a valid abolition of their office by Congress. More specifically, whether the changes effected by RA 8551 in reference to the NAPOLCOM were so substantial as to effectively create a completely new office 17 in contemplation of the law. In answer to this query, the case of Mayor v. Macaraig is squarely in point. 18 In that case, the petitioners assailed the constitutionality of Republic Act No. 6715 insofar as it declared vacant the positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the National Labor Relations Commission and provided for the removal of the incumbents upon the appointment and qualification of their 19 successors. The Court held that the removal of petitioners was unconstitutional since Republic Act No. 6715 did not expressly or impliedly abolish the offices of petitioners, there being no irreconcilable inconsistency in the nature, duties and functions of the petitioners offices under the old law and the new law. Thus: Abolition of an office is obviously not the same as the declaration that that office is vacant. While it is undoubtedly a prerogative of the legislature to abolish certain offices, it can not be conceded the power to simply pronounce those offices vacant and thereby effectively remove the occupants or holders thereof from the civil service. Such an act would constitute, on its face, an infringement of the constitutional guarantee of security of tenure, and will have to be struck down on that account. It can not be justified by the professed "need to professionalize the higher levels of officialdom invested with adjudicatory powers and functions, and to upgrade their qualifications, ranks, and salaries or emoluments. This is precisely what RA 8851 seeks to do - declare the offices of petitioners vacant, by declaring that "the terms of office of the current Commissioners are deemed expired," thereby removing petitioners herein from the civil service. Congress may only be conceded this power if it is done pursuant to a bona fide abolition of the NAPOLCOM. RA 8551 did not expressly abolish petitioners positions. In order to determine whether there has been an implied abolition, it becomes necessary to examine the changes introduced by the new law in the nature, composition and functions of the NAPOLCOM. Under RA 6975, the NAPOLCOM was described as a collegial body within the Department of the Interior and 20 Local Government, (Department) whereas under RA 8551 it is made "an agency attached to the Department 21 for policy and program coordination." Contrary to what public respondents would have us believe, this does not result in the creation of an entirely new office. In Mayor, the NLRC, prior to the passage of the amendatory law, was also considered an integral part of the Department of Labor and Employment. RA 6715, however, changed that by declaring that it shall instead "..be attached to the Department of Labor and Employment for program coordination only." making it a more autonomous body. The Court held that this change in the NLRCs nature was not sufficient to justify a conclusion that the new law abolished the offices of the labor commissioners. Another amendment pointed out by public respondents is the revision of the NAPOLCOMs composition. RA 8551 expanded the membership of the NAPOLCOM from four to five Commissioners by adding the Chief of the PNP as an ex-officio member. In addition, the new law provided that three of the regular Commissioners shall come from the civilian sector who are neither active nor former members of the police or military, and that the fourth regular Commissioner shall come from the law enforcement sector either active or retired. Furthermore, it 22 is required that at least one of the Commissioners shall be a woman. Again, as we held in Mayor, such revisions do not constitute such essential changes in the nature of the NAPOLCOM as to result in an implied abolition of such office. It will be noted that the organizational structure of the NAPOLCOM, as provided in 23 section 20 of RA 6975 as amended by section 10 of RA 8551, remains essentially the same and that, except for the addition of the PNP Chief as ex-officio member, the composition of the NAPOLCOM is also substantially identical under the two laws. Also, under both laws, the Secretary of the Department shall act as the ex-officio Chairman of the Commission and the Vice-Chairman shall be one of the Commissioners designated by the 24 President. Finally, the powers and duties of the NAPOLCOM remain basically unchanged by the amendments. Under RA 6975, the Commission has the following powers and functions:

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(a) Exercise administrative control over the Philippine National Police; (b) Advise the President on all matters involving police functions and administration; (c) Foster and develop policies and promulgate rules and regulations, standards and procedures to improve police services based on sound professional concepts and principles; (d) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance, activities, and facilities of all police agencies throughout the country; (e) Prepare a police manual prescribing rules and regulations for efficient organization, administration, and operation, including recruitment, selection, promotion and retirement; (f) Establish a system of uniform crime reporting; (g) Conduct surveys and compile statistical data for the proper evaluation of the efficiency and effectiveness of all police units in the country; (h) Render to the President and to Congress an annual report on its activities and accomplishments during the thirty (30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of police agencies in the municipalities, cities and provinces throughout the country, and recommendation for appropriate remedial legislation; (i) Approve or modify plans and programs on education and training, logistiequirements, communications, records, information systems, crime laboratory, crime prevention and crime reporting; (j) Affirm reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police; (k) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisions on claims for police benefits; (l) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crime prevention; (m) Prescribe minimum standards for arms, equipment, and uniforms and, after consultation with the Philippine Heraldry Commission, for insignia of ranks, awards and medals of honor; (n) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and designate who among its personnel can issue such processes and administer oaths in connection therewith; and (o) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct. Meanwhile, the NAPOLCOMs functions under section 5 of RA 8551 are: a) Exercise administrative control and operational supervision over the Philippine National Police which shall mean the power to: 1) Develop policies and promulgate a police manual prescribing rules and regulations for efficient organization, administration, and operation, including criteria for manpower allocation, distribution and deployment, recruitment, selection , promotion, and retirement of personnel and the conduct of qualifying entrance and promotional examinations for uniformed members; 2) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance, activities and facilities of all police agencies throughout the country; 3) Establish a system of uniform crime reporting; 4) Conduct an annual self-report survey and compile statistical date for the accurate assessment of the crime situation and the proper evaluation of the efficiency and effectiveness of all police units in the country; 5) Approve or modify plans and programs on education and training, logistiequirements, communications, records, information systems, crime laboratory, crime prevention and crime reporting; 6) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police; 7) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisions on claims for police benefits; 8) Prescribe minimum standards for arms, equipment, and uniforms and after consultation with the Philippine Heraldry Commission, for insignia of ranks, awards, and medals of honor. Within ninety (90) days from the effectivity of this Act, the standards of the uniformed personnel of the PNP must be revised which should be clearly distinct from the military and reflective of the civilian character of the police; 9) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and designate who among its personnel can issue such processes and administer oaths in connection therewith; 10) Inspect and assess the compliance of the PNP on the established criteria for manpower allocation, distribution, and deployment and their impact on the community and the crime situation, and therewith formulate

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appropriate guidelines for maximization of resources and effective utilization of the PNP personnel; 11) Monitor the performance of the local chief executives as deputies of the Commission; and 12) Monitor and investigate police anomalies and irregularities. b) Advise the President on all matters involving police functions and administration; c) Render to the President and to the Congress an annual report on its activities and accomplishments during the thirty (30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of police agencies in the municipalities, cities and provinces throughout the country, and recommendations for appropriate remedial legislation; d) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crime prevention program; andx law e) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct." Clearly, the NAPOLCOM continues to exercise substantially the same administrative, supervisory, rule-making, advisory and adjudicatory functions. Public respondents argue that the fact that the NAPOLCOM is now vested with administrative control and operational supervision over the PNP, whereas under RA 6975 it only exercised administrative control should be 25 construed as evidence of legislative intent to abolish such office. This contention is bereft of merit. Control means "the power of an officer to alter or modify or set aside what a subordinate officer had done in the 26 performance of his duties and to substitute the judgment of the former for the that of the latter." On the other hand, to supervise is to oversee, to have oversight of, to superintend the execution of or the performance of a thing, or the movements or work of a person, to inspect with authority; it is the power or authority of an officer to 27 see that subordinate officers perform their duties. Thus, the power of control necessarily encompasses the power of supervision and adding the phrase "operational supervision" under the powers of the NAPOLCOM would not bring about a substantial change in its functions so as to arrive at the conclusion that a completely new office has been created. Public respondents would have this Court believe that RA 8551 reorganized the NAPOLCOM resulting in the abolition of petitioners offices. We hold that there has been absolutely no attempt by Congress to effect such a reorganization. Reorganization takes place when there is an alteration of the existing structure of government offices or units 28 therein, including the lines of control, authority and responsibility between them. It involves a reduction of 29 personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Naturally, it may result in the loss of ones position through removal or abolition of an office. However, for a 30 reorganization to be valid, it must also pass the test of good faith, laid down in Dario v.n: ...As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for politieasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. It is exceedingly apparent to this Court that RA 8551 effected a reorganization of the PNP, not of the NAPOLCOM. They are two separate and distinct bodies, with one having supervision and control over the other. In fact, it is the NAPOLCOM that is given the duty of submitting a proposed reorganization plan of the PNP to 31 Congress. As mentioned earlier, the basic structure of the NAPOLCOM has been preserved by the amendatory law. There has been no revision in its lines of control, authority and responsibility, neither has there been a reduction in its membership, nor a consolidation or abolition of the offices constituting the same. Adding the Chief of the PNP as an ex-officio member of the Commission does not result in a reorganization. No bona fide reorganization of the NAPOLCOM having been mandated by Congress, RA 8551, insofar as it declares the terms of office of the incumbent Commissioners, petitioners herein, as expired and resulting in their removal from office, removes civil service employees from office without legal cause and must therefore be struck down for being constitutionally infirm. Petitioners are thus entitled to be reinstated to office. It is of no moment that there are now new appointees to the NAPOLCOM. It is a well-entrenched principle that when a regular government employee is illegally dismissed, his position never became vacant under the law and he is considered as not having left his office. 32 The new appointments made in order to replace petitioners are not valid. At this juncture, we note that it is alleged by public respondents that on June 30, 1998, Canonizado accepted an appointment by President Estrada as the Inspector General of Internal Affairs Services (IAS) of the PNP, pursuant to sections 40 and 41 of RA 8551 and that he took his oath of office before the President on July 7, 1998. However, this is a mere allegation on the part of public respondents of which this Court cannot take

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judicial notice. Furthermore, this issue has not been fully ventilated in the pleadings of the parties. Therefore, such allegation cannot be taken into consideration by this Court in passing upon the issues in the present case. Petitioners also assail the constitutionality of section 4 of RA 8551 insofar as it limits the law enforcement sector to only one position on the Commission and categorizes the police as being part of the law enforcement sector despite section 6 of Article XVI of the Constitution which provides that the police force shall be civilian in character. Moreover, it is asserted by petitioners that the requirement in section 4 that one of the Commissioners shall be a woman has no rational basis and is therefore discriminatory. They claim that it amounts to class legislation and amounts to an undue restriction upon the appointing power of the President as provided under 33 section 16 of Article VII of the Constitution. In view of our ruling upon the unconstitutionality of petitioners removal from office by virtue of section 8 of RA 8551, we find that there is no longer any need to pass upon these remaining constitutional questions. It is beyond doubt that the legislature has the power to provide for the composition of the NAPOLCOM since it created such body. Besides, these questions go into the very wisdom of the law, and unquestionably lie beyond 34 the normal prerogatives of the Court to pass upon. WHEREFORE, we grant the petition, but only to the extent of declaring section 8 of RA 8551 unconstitutional for being in violation of the petitioners right to security of tenure. The removal from office of petitioners as a result of the application of such unconstitutional provision of law and the appointment of new Commissioners in their stead is therefore null and void. Petitioners herein are entitled to REINSTATEMENT and to the payment of full 35 backwages to be reckoned from the date they were removed from office. SO ORDERED.s c Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.

MAYOR ALVIN B. GARCIA, petitioner, vs. HON. ARTURO C. MOJICA, in his capacity as Deputy Ombudsman for the Visayas, VIRGINIA PALANCA-SANTIAGO, in his capacity as Director, Office of the Ombudsman (Visayas), ALAN FRANCISCO S. GARCIANO, in his capacity as Graft Investigation Officer I, Office of the Ombudsman (Visayas), and JESUS RODRIGO T. TAGAAN, respondents. DECISION QUISUMBING, J.: The present controversy involves the preventive suspension order issued on June 25, 1999, by the Office of the Ombudsman (Visayas) in OMB-VIS-ADM-99-0452, against petitioner Cebu City Mayor Alvin B. Garcia and eight other city officials. Under the said order, petitioner was placed under preventive suspension without pay for the maximum period of six months and told to cease and desist from holding office immediately. The factual antecedents are as follows: On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of asphalt to the city. The contract covers the period 1998-2001, which period was to commence on September 1998 when the first delivery should have been made by F.E. Zuellig. Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City, through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into the matter.[1] Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132. After his investigation, he recommended that the said inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation. In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft investigating officer to whom the case was raffled for investigation, recommended the preventive suspension of petitioner and the others. Two days later, or on June 24, 1999, the affidavit-complaint against petitioner was filed. The following day, on June 25, 1999, the Office of the Ombudsman issued the questioned preventive suspension order. On June 29, 1999, petitioner filed a motion for reconsideration of said order, which motion was denied in an order dated July 5, 1999. Petitioner is now before this Court assailing the validity of the said order. He pleads for immediate relief through the present petition for certiorari and prohibition with a prayer for temporary restraining order and/or writ of preliminary injunction. Petitioner contends that: I THE RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ASSUMING JURISDICTION OVER OMB-VIS-ADM-99-0452

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AND ISSUING THE PREVENTIVE SUSPENSION ORDER, THE OFFICE OF THE OMBUDSMAN BEING WITHOUT JURISDICTION OVER THE ADMINISTRATIVE CASE, CONSIDERING THAT THE ALLEGED ACT CONSTITUTING THE CHARGE AGAINST PETITIONER HEREIN WAS COMMITTED DURING HIS PREVIOUS TERM, AND PETITIONER HAVING BEEN REELECTED TO THE SAME POSITION. II ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-99-0452, THE PREVENTIVE SUSPENSION FOR SIX MONTHS WAS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF THE PROVISIONS OF SECTION 63 OF THE LOCAL GOVERNMENT CODE WHICH MANDATES THAT THE PREVENTIVE SUSPENSION OF LOCAL ELECTIVE OFFICIALS BE ORDERED ONLY AFTER THE ISSUES HAVE BEEN JOINED, AND ONLY FOR A PERIOD NOT IN EXCESS OF SIXTY (60) DAYS. III ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-99-0452, THE PREVENTIVE SUSPENSION WAS ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF SECTION 26(2) OF THE OMBUDSMAN LAW. IV ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION, THE RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CONCLUDING THAT THE EVIDENCE AGAINST PETITIONER WAS STRONG, THE LITTLE EVIDENCE ON RECORD CONSISTING SOLELY OF A HEARSAY AFFIDAVIT, AND INADMISSIBLE NEWSPAPER REPORTS. On July 19, 1999, we directed the parties to maintain the status quo until further orders from this Court. It appears that on the same day, petitioner issued a memorandum informing employees and officials of the Office of the City Mayor that he was assuming the post of mayor effective immediately. On July 23, 1999, respondents filed a motion seeking clarification of our status quo order. Respondents claimed that the status quo referred to in the order should be that where petitioner is already suspended and vice mayor Renato Osmea is the acting city mayor. Petitioner, in reply, argued that the status quo refers to the last actual peaceable uncontested status which preceded the pending controversy.[2] Thus, the status quo could not be that where petitioner is preventively suspended since the suspension did not precede the present controversy; it is the controversy. We agree with petitioner in this regard. As explained by Justice Florenz D. Regalado, an authority on remedial law: There have been instances when the Supreme Court has issued a status quo order which, as the very term connotes, is merely intended to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy. This was resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief or the allegations in his pleading did not sufficiently make out a case for a temporary restraining order. The status quo order was thus issued motu proprio on equitable considerations. Also, unlike a temporary restraining order or a preliminary injunction, a status quo order is more in the nature of a cease and desist order, since it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory injunctive relief. The further distinction is provided by the present amendment in the sense that, unlike the amended rule on restraining orders, a status quo order does not require the posting of a bond.[3] On July 28, 1999, we heard the parties oral arguments on the following issues: 1. What is the effect of the reelection of petitioner on the investigation of acts done before his reelection? Did the Ombudsman for the Visayas gravely abuse his discretion in conducting the investigation of petitioner and ordering his preventive suspension? 2. Assuming that the Ombudsman properly took cognizance of the case, what law should apply to the investigation being conducted by him, the Local Government Code (R.A. 7160) or the Ombudsman Law (R.A. 6770)? Was the procedure in the law properly observed? 3. Assuming further that the Ombudsman has jurisdiction, is the preventive suspension of petitioner based on strong evidence as required by law? We will now address these issues together, for the proper resolution on the merits of the present controversy. Petitioner contends that, per our ruling in Aguinaldo v. Santos,[4] his reelection has rendered the administrative case filed against him moot and academic. This is because reelection operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term. Petitioner further

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cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija,[5] that . . . When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Respondents, on the other hand, contend that while the contract in question was signed during the previous term of petitioner, it was to commence or be effective only on September 1998 or during his current term. It is the respondents submission that petitioner went beyond the protective confines[6] of jurisprudence when he agreed to extend his act to his current term of office.[7] Aguinaldo cannot apply, according to respondents, because what is involved in this case is a misconduct committed during a previous term but to be effective during the current term. Respondents maintain that, ...petitioner performed two acts with respect to the contract: he provided for a suspensive period making the supply contract commence or be effective during his succeeding or current term and during his current term of office he acceded to the suspensive period making the contract effective during his current term by causing the implementation of the contract.[8] Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents. Further, respondents point out that the contract in question was signed just four days before the date of the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to office, they did so with full knowledge of petitioners character. On this point, petitioner responds that knowledge of an officials previous acts is presumed and the court need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds. Petitioner cites our ruling in Salalima v. Guingona,[9] wherein we absolved Albay governor Romeo R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term, although disbursements of public funds to cover payments under the agreement were still being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine in Aguinaldo applies even where the effects of the act complained of are still evident during the subsequent term of the reelected official. The implementation of the contract is a mere incident of its execution. Besides, according to petitioner, the sole act for which he has been administratively charged is the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contracts execution or implementation, or any act subsequent to the perfection of the contract. In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection. Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. Under Article XI, Section 13[1], the Ombudsman has the power to: investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct administrative investigations. Thus, Section 19 of said law provides: SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: (1) Are contrary to law or regulation; (2) Are unreasonable, unfair, oppressive or discriminatory; (3) Are inconsistent with the general course of an agencys functions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or (6) Are otherwise irregular, immoral or devoid of justification. Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority: SEC. 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.(Emphasis supplied.) Petitioner is an elective local official accused of grave misconduct and dishonesty.[10] That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770. However, the question of whether or not the Ombudsman may conduct an investigation over a particular

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act or omission, is different from the question of whether or not petitioner, after investigation, may be held administratively liable. This distinction ought here to be kept in mind, even as we must also take note that the power to investigate is distinct from the power to suspend preventively an erring public officer. Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law. Under Section 24 of R.A. 6770 SEC. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Underscoring supplied.) We have previously interpreted the phrase under his authority to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are employed,[11] excepting of course those removable by impeachment, members of Congress and the Judiciary. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited. There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or influence witnesses[12] or to tamper with records that might be vital to the prosecution of the case against him.[13] In our view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive suspension at six months? Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among other factors, the evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed six months. In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law. SEC. 24. Preventive Suspension. xxx The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Underscoring supplied.) The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the Ombudsman.[14] The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by law.[15] But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition. These equitable remedies under Rule 65 of the Rules of Court precisely exist to provide prompt relief where an officer exercising judicial or quasi-judicial functions has acted...with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. (See Rule 65, Sec. 1). It is pertinent to note here that the inquiry that preceded the filing of an administrative case against petitioner was prompted by newspaper reports regarding the allegedly anomalous contract entered into by petitioner, on behalf of Cebu City, with F.E. Zuellig.[16] In the memorandum to respondent Mojica,[17] respondent Garciano recommended that petitioner be preventively suspended, based on an initial investigation purportedly showing: (1) the contract for supply of asphalt to Cebu City was designed to favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive compared to the amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that the amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risks attendant to a fluctuating exchange rate, and (3) the interest of the city under the contract is not protected by adequate security. These findings were based on the contract itself and on letters from Bitumex and Credit Lyonnais. There were also letters from Shell and Petron that were replies to the Office of the Ombudsmans (Visayas) inquiry on whether or not they could supply Cebu City with asphalt and on what terms.

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Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioners guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. Respondents base their argument on the deliberations of the Senate on Senate Bill No. 155, which became the Local Government Code. Senator Aquilino Pimentel, Jr., commenting on the preservation in the proposed Code of the power of the Office of the President to suspend local officials, said: Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President.[18] Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or Presidents office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. In Hagad v. Gozo-Dadole,[19] on the matter of whether or not the Ombudsman has been stripped of his power to investigate local elective officials by virtue of the Local Government Code, we said: Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other.[20] It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is much too repugnant to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, the two provisions govern differently. [21] However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that there could be preventive suspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence.[22] Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the

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official concerned. Petitioner also avers that the suspension order against him was issued in violation of Section 26(2) of the Ombudsman Law, which provides: SEC. 26. Inquiries. xxx (2) The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt thereof Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concerned must be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer. Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier stated, a preventive suspension order may be issued even before the charges against the official concerned is heard. Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5(a) of the Rules of Procedure of the Office of the Ombudsman,[23] which provides: Sec. 5. Administrative adjudication; How conducted. (a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt thereof, together with proof of service of the same on the complainant who may file reply affidavits within ten (10) days from receipt of the counter-affidavits of the respondent. We now come to the concluding inquiry. Granting that the Office of the Ombudsman may investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of office; and that it may preventively suspend him for a reasonable period, can that office hold him administratively liable for said acts? In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office.[24] The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character. For his part, petitioner contends that the only conclusive determining factor[25] as regards the peoples thinking on the matter is an election. On this point, we agree with petitioner. That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the officials reelection, except that it must be prior to said date. As held in Salalima, The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an officials reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service... (Emphasis added.)[26] The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively liable for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig. The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during his succeeding term. This situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract

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with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during petitioners second term. However, respondents argue that the contract, although signed on May 7, 1998, during petitioners prior term, is to be made effective only during his present term. We fail to see any difference to justify a valid distinction in the result. The agreement between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioners prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F. E. Zuellig, however, this should not prejudice the filing of any case other than administrative against petitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is limited to the question of whether or not he may be held administratively liable therefor, and it is our considered view that he may not. WHEREFORE, the petition is hereby DENIED insofar as it seeks to declare that respondents committed grave abuse of discretion in conducting an inquiry on complaints against petitioner, and ordering their investigation pursuant to respondents mandate under the Constitution and the Ombudsman Law. But the petition is hereby GRANTED insofar as it seeks to declare that respondents committed grave abuse of discretion concerning the period of preventive suspension imposed on petitioner, which is the maximum of six months, it appearing that 24 days the number of days from the date petitioner was suspended on June 25, 1999, to the date of our status quo order on July 19, 1999 were sufficient for the purpose. Accordingly, petitioners preventive suspension, embodied in the order of respondent Deputy Ombudsman, dated June 25, 1999, should now be, as it is hereby, LIFTED immediately. SO ORDERED. Bellosillo, Acting C.J., (Chairman), Mendoza, and Buena, JJ., concur. HON. BARTOLOME C. CARALE, Chairman, National Labor Relations Commission (NLRC), HON. IRENEA A. CENIZA, Presiding Commissioner, Fourth Division, NLRC, and HON. REYNOSO A. BELARMINO, Executive Labor Arbiter, Regional Arbitration Branch, Region VII, petitioners, vs. HON. PAMPIO A. ABARINTOS, Presiding Judge, Regional Trial Court, Branch 22, Cebu City, and FERDINAND V. PONTEJOS, respondents. DECISION DAVIDE, JR., J.: Did respondent Judge Pampio A. Abarintos commit grave abuse of discretion amounting to lack or excess of jurisdiction when he: (1) denied the petitioners motions to dismiss the complaint filed by respondent Ferdinand V. Pontejos (hereinafter PONTEJOS) to declare null and void an Administrative Order of petitioner Carale, as Chairman of the National Labor Relations Commission (NLRC) (hereinafter CARALE), detailing Pontejos to the Fourth Division of the NLRC in Cebu City; and the motion to reconsider the order of denial; and then (2) granted the application for a writ of preliminary injunction? This is the key issue raised in this petition. The relevant factual antecedents summarized in the petition are as follows: 9. Private respondent Pontejos was issued an original and permanent appointment dated January 10, 1989 as Labor and Employment Development Officer (RAB VII) in the National Labor Relations Commission with a salary of P36,864.00 per annum under Title No. 211-10 of the Appropriations Act R.A. 6642. In 1992, the aforesaid position was reclassified as Labor Arbitration Associate with compensation of P99,000.00 per annum or rank at salary grade 22, retroactive to June 30, 1989. Private respondent holds this position up to the present. 10.On 03 October 1994, petitioner Chairman of the NLRC, issued Administrative Order No. 10-03 series of 1994, detailing/reassigning private respondent to the NLRC, Fourth Division, Cebu City, effective October 17, 1994. Said Order reads: ADMINISTRATIVE ORDER NO. 10-03 (Series of 1994) In the interest of the service, Mr. Ferdinand Pontejos, Labor Arbitration Branch No. VII, is hereby detailed to the Fourth Division, Cebu City, effective October 17, 1994, until further orders from the undersigned. Mr. Pontejos is directed to wind up his pending work and thereafter report to the Presiding Commissioner Irene E. Ceniza for instruction regarding his new assignment.

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Manila, October 3, 1994. (SGD) BARTOLOME S. CARALE Chairman 11.Similar personnel actions, prior to and after Pontejos reassignment to NLRC, Cebu City, were also effected by petitioner Carale pursuant to his exercise of administrative authority and supervision over all NLRC officials and employees.... 12.On 24 October 1994, private respondent filed a complaint before the Regional Trial Court of Cebu City against herein petitioners for Illegal Transfer Tantamount To Removal Without Cause In Gross Violation Of The Security Of Tenure Afforded Under The Constitution And In Utter Disregard Of The Civil Service Rules and Regulations, Republic Act 6715, with Prayer For The Issuance Of A Writ Of Preliminary Injunction and/or Preliminary Mandatory Injunction With Damages. The case was docketed as Civil Case No. CEB-16671.... 13.Motions to dismiss dated November 8, 1994 and November 15, 1994, were respectively filed by petitioner Ceniza and Carale, arguing that it is the Civil Service Commission which has exclusive jurisdiction over any question concerning personnel movement.... 14.A Supplemental Motion to Dismiss dated November 21, 1994 was filed by petitioner Belarmino arguing that the questioned administrative order is in the nature of a detail and the civil service employee who is not satisfied with or aggrieved by such detail may appeal the matter before the Civil Service Commission.... 15.On December 20, 1994, respondent judge issued the first questioned order denying petitioners Motions to Dismiss holding that alleged non-exhaustion of administrative remedies before where the surrounding circumstances of the matter before this Court indicate an urgency of judicial intervention.... 16.In the same Order, respondent judge also granted the prayer for preliminary injunction restraining petitioners from implementing the transfer order.... 17.A motion for reconsideration dated January 9, 1995 was filed by petitioner Belarmino which was denied in the second questioned order dated February 7, 1995.... 18.On 06 March 1995, Jeoffrey S. Joaquino, Clerk of Court VII, pursuant to respondent judges order dated December 20, 1994, issued a writ of injunction enjoining herein petitioners from unduly interfering with and/or obstructing private respondent Pontejos lawful discharge of his duties and functions as such Labor Arbitration Associate, until further orders from respondent judge. The writ of injunction was received by petitioner Carale on March 21, 1995....[1] Pontejos complaint in Civil Case No. CEB-16671 suggested that the uncordial relationship between himself, as president of the Unified Employees Union of the NLRC, RAB VII, and Chairman of the NLRC-RABVII Multi-Purpose Cooperative, and petitioners Presiding Commissioner Ceniza and Executive Labor Arbiter Belarmino, against whom the petitioner had earlier filed a petition for certiorari with this Court and a complaint for harassment and intimidation, respectively, had something to do with his detail to the Fourth Division of the NLRC. Pontejos alleged as there was no position of Labor Arbitration Associate in that Division, the detail order was maliciously resorted to as a scheme to lure [him] away from his permanent position, thereby violating his security of tenure; and described it as an act of vindictiveness against him and was patently illegal, malicious, arbitrary and an exercise of grave abuse of discretion in excess of jurisdiction.[2] To justify his direct resort to the court, Pontejos alleged that [t]here is no other available and speedy remedy in order to protect [his] interest than to resort to this Honorable Court; that the urgency of judicial intervention is an exception to the rule of exhaustion of administrative remedies,[3] not to mention the fact that the administrative act in question is patently illegal.[4] To support his application for a writ of preliminary injunction and/or restraining [order], Pontejos alleged that: 11.[He] is entitled to the relief demanded and the whole or part of such relief consists in RESTRAINING OR PREVENTING the defendants, their agents and all persons acting for or in their behalf, from enforcing and implementing the questioned Administrative Order No. 10-03, Series of 1994; 12.The commission of the continuance of the acts complained of during the litigation or the nonperformance thereof, could probably work grave injustice to the plaintiff ... so that the defendants ... must be enjoined by a restraining order from implementing and/or enforcing the ... questioned Administrative Order; 13.[He] is willing to post a bond executed to he defendants enjoined, in an amount to be fixed by the court, to the effect that [he] will pay to such party all damages which they [sic] may sustain by reason of the injunction if the court should finally decide that the plaintiff is not entitled thereto.[5] Pontejos further asserted that the petitioners had acted with gross and evident bad faith, and by their

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conduct, have violated all forms of good human conduct and dealings and did not exhibit any degree of good faith, honesty and propriety, as a consequence of which he has suffered mental anxiety, sleepless nights, wounded feelings and moral shock; and had displayed anti-social acts and conduct, contrary to the tenents [sic] enunciated in the Preliminary Title in Human relations found in Articles 19 and 20 of the Civil Code of the Philippines. On account thereof, he prayed for the award of P100,000.00 as moral damages; P50,000.00 as exemplary damages; P30,000.00 as attorneys fees; and P5,000.00 as litigation expenses.[6] In the challenged order of 20 December 1994, the trial court, in dismissing the petitioners motions to dismiss, ruled that the only effect of non-compliance with the rule on exhaustion of administrative remedies is that it will deprive the complainant of a cause of action; it does not affect the jurisdiction of the court. Since the factual allegations of the complaint satisfactorily meet the test of sufficiency of the complaint insofar as cause of action is concerned, the complaint was not dismissible. In the challenged resolution of 7 February 1995 denying the petitioners motion to reconsider the order of 20 December 1994, the trial court further held that the case before it fell within one of the exceptions to the rule on exhaustion of administrative remedies, namely, where the question to be settled is whether the controverted act of respondent Commissioner Carale was performed with grave abuse of discretion.[7] In this special civil action for certiorari, the petitioners assert that: I RESPONDENT JUDGE HAS NO JURISDICTION TO REVIEW THE VALIDITY OF THE TRANSFER ORDER ISSUED BY PETITIONER CHAIRMAN OF THE NATIONAL LABOR RELATIONS COMMISSION SINCE THE CONTROVERSY IS WITHIN THE ORIGINAL AND EXCLUSIVE JURISDICTION OF THE CIVIL SERVICE COMMISSION. II THE RESPONDENT JUDGE HAS NO JURISDICTION TO TAKE COGNIZANCE OF THE COMPLAINT FILED AGAINST PETITIONERS AS IT CONSTITUTES A SUIT AGAINST THE STATE WITHOUT ITS CONSENT. III THE PETITIONERS WERE NOT REPRESENTED IN THE TRIAL COURT BY THEIR STATUTORY COUNSEL, THE OFFICE OF THE SOLICITOR GENERAL, HENCE THE PROCEEDINGS HAD THEREIN IS A NULLITY. As to the first ground, the petitioners maintain that being a permanent civil service employee, Pontejos is subject to civil service laws and regulations pursuant to Subsection 1(1), Section 8-B, Article IX-A of the Constitution. His grievance concerning Carales administrative order detailing him to the Fourth Division of the NLRC should have been raised in an appropriate complaint before the Merit Systems and Protection Board (MSPB) created under P.D. No. 1409, whose functions, pursuant to Civil Service Commission (CSC) Resolution No. 93-2387, have been transferred directly to the CSC itself. The petitioners further claim that there is no factual or legal basis indicative of the urgency of judicial intervention to justify the trial courts assumption of jurisdiction over this case and to order the issuance of the questioned writ of preliminary injunction. Anent the second ground, the petitioners, citing Veterans Manpower and Protective Service, Inc. v. Court of Appeals,[8] submit that Pontejos complaint, which asked for a writ of injunction and damages, is in effect a suit against the State without its consent, hence, the petitioners, who are all public officials, are immune from such suit. In support of the third ground, the petitioners alleged that all throughout the proceedings before the trial court, the petitioners were not represented by their statutory counsel, the Solicitor General, whose authority is mandated under P.D. No. 478, the magna carta of the Office of the Solicitor General (OSG).[9] Consequently, the questioned orders and the writ of preliminary injunction were invalid. In the 26 July 1995 resolution, we required the respondents to comment on the petition and issued a temporary restraining order, effective as of the said date, which enjoined the respondents from enforcing the orders of 20 December 1994 and 7 February 1995 issued in Civil Case No. CEB-16671. We resolved to give due course to the petition and required the parties to submit their respective memoranda. However, only Pontejos complied, the Office of the Solicitor General failing to despite two extensions of time. We denied on 20 November 1996 its third motion for extension of time to file its Memorandum. We find merit in the petition, but not necessarily on strength of the grounds raised. The primary issue in this special civil action, as stated in the opening paragraph of this ponencia, is whether the respondent Judge acted with grave abuse of discretion amounting to lack of jurisdiction when he denied the motions to dismiss and the motion for reconsideration, and granted the application for a writ of preliminary injunction to enjoin the petitioners from implementing or enforcing Carales Administrative Order 1003, Series of 1994. I The motions to dismiss separately filed in the trial court by petitioners Carale and Presiding Commissioner Ceniza were principally anchored on lack of jurisdiction due to the failure of Pontejos to exhaust administrative

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remedies. Obviously, the petitioners failed to appreciate that non-exhaustion of administrative remedies is not jurisdictional. It only renders the action premature, i.e., the claimed cause of action is not ripe for judicial determination and for that reason a party has no cause of action to ventilate in court.[10] Their motions to dismiss must then be understood to be based on: (a) lack of jurisdiction; and (b) lack of cause of action for failure to exhaust administrative remedies. Observance of the mandate regarding exhaustion of administrative remedies is a sound practice and policy. It ensures an orderly procedure which favors a preliminary sifting process, particularly with respect to matters peculiarly within the competence of the administrative agency, avoidance of interference with functions of the administrative agency by withholding judicial action until the administrative process had run its course, and prevention of attempts to swamp the courts by a resort to them in the first instance.[11] The underlying principle of the rule rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the same correctly.[12] There are both legal and practical reasons for this principle. The administrative process is intended to provide less expensive and more speedy solutions to disputes. Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts, for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum.[13] Accordingly, the party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief, but also pursue it to its appropriate conclusion before seeking judicial intervention in order to give the administrative agency an opportunity to decide the matter by itself correctly and prevent unnecessary and premature resort to the court.[14] In the instant case, Pontejos did not attempt to seek administrative relief, which was both available and sufficient. Initially, he could have asked for reconsideration of the detail order, failing which, he could have gone directly to the CSC, through the MSPB, which is empowered to: (2) Hear and decide cases brought before it by offices and employees who feel aggrieved by the determination of appointing authorities involving ... transfer, detail, reassignment and other personnel actions, as well as complaints against any officers in the government arising from personnel actions of these officers or from violations of the merit system....[15] Nothing in the complaint in Civil Case No. CEB-16671 convinces us that Pontejos ever thought of pursuing the available administrative remedies. Neither do we find sufficient basis for his invocation of the exception to the rule on exhaustion of administrative remedies. What he offered were nothing but vague and general averments that could best qualify as motherhood statements. Further, they were unsupported by allegations of fact or law which would prima facie bring his case within any of the accepted exceptions to the rule, namely: (1) where the question is purely legal, (2) where judicial intervention is urgent, (3) when its application may cause great and irreparable damage, (4) where the controverted acts violate due process, (5) failure of a high government official from whom relief is sought to act on the matter, and (6) when the issue of non-exhaustion of administrative remedies has been rendered moot.[16] II We do not likewise hesitate to rule that the respondent Judge committed grave abuse of discretion when he granted the application for a writ of preliminary injunction without any notice of hearing. The rule on preliminary injunction plainly provides that it cannot be granted without notice to the defendant. Section 5, Rule 58 of the Rules of Court states, in part, as follows: SEC. 5. Preliminary injunction not granted without notice. -- No preliminary injunction shall be granted without notice to the defendant. If it shall appear from the facts shown by affidavits or by verified complaint that great or irreparable injury would result to the applicant before the matter could be heard on notice, the judge to whom the application for preliminary injunction was made, may issue a restraining order to be effective only for a period of twenty days from date of issuance. Within the said twenty-day period, the judge must cause an order to be served on the defendant, requiring him to show cause, at a specified time and place, why the injunction should not be granted, and determine within the same period whether or not the preliminary injunction shall be granted and shall accordingly issue the corresponding order.... (underscoring supplied for emphasis) WHEREFORE, the instant petition is GRANTED. The assailed orders of 20 December 1994 and 7 February 1995 in Civil Case No. CEB-16671 of Branch 22 of the Regional Trial Court of Cebu City, entitled Ferdinand V. Pontejos v. Hon. Bartolome C. Carale, et al., are hereby ANNULLED and SET ASIDE and respondent Judge Pampio A. Abarintos is hereby directed to forthwith issue an order DISMISSING the said case. SO ORDERED. Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

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LEONARDO A. PAAT, in his capacity as Officer-in-Charge (OIC), Regional Executive Director (RED), Region 2 and JOVITO LAYUGAN, JR., in his capacity as Community Environment and Natural Resources Officer (CENRO), both of the Department of Environment and Natural Resources (DENR), petitioners, vs. COURT OF APPEALS, HON. RICARDO A. BACULI in his capacity as Presiding Judge of Branch 2, Regional Trial Court at Tuguegarao, Cagayan, and SPOUSES BIENVENIDO and VICTORIA DE GUZMAN, respondents. DECISION TORRES, JR., J.: Without violating the principle of exhaustion of administrative remedies, may an action for replevin prosper to recover a movable property which is the subject matter of an administrative forfeiture proceeding in the Department of Environment and Natural Resources pursuant to Section 68-A of P. D. 705, as amended, entitled The Revised Forestry Code of the Philippines? Are the Secretary of DENR and his representatives empowered to confiscate and forfeit conveyances used in transporting illegal forest products in favor of the government? These are two fundamental questions presented before us for our resolution. The controversy on hand had its incipiency on May 19, 1989 when the truck of private respondent Victoria de Guzman while on its way to Bulacan from San Jose, Baggao, Cagayan, was seized by the Department of Environment and Natural Resources (DENR, for brevity) personnel in Aritao, Nueva Vizcaya because the driver could not produce the required documents for the forest products found concealed in the truck. Petitioner Jovito Layugan, the Community Environment and Natural Resources Officer (CENRO) in Aritao, Cagayan, issued on May 23, 1989 an order of confiscation of the truck and gave the owner thereof fifteen (15) days within which to submit an explanation why the truck should not be forfeited. Private respondents, however, failed to submit the required explanation. On June 22, 1989,[1] Regional Executive Director Rogelio Baggayan of DENR sustained petitioner Layugans action of confiscation and ordered the forfeiture of the truck invoking Section 68-A of Presidential Decree No. 705 as amended by Executive Order No. 277. Private respondents filed a letter of reconsideration dated June 28, 1989 of the June 22, 1989 order of Executive Director Baggayan, which was, however, denied in a subsequent order of July 12, 1989.[2] Subsequently, the case was brought by the petitioners to the Secretary of DENR pursuant to private respondents statement in their letter dated June 28, 1989 that in case their letter for reconsideration would be denied then this letter should be considered as an appeal to the Secretary.[3] Pending resolution however of the appeal, a suit for replevin, docketed as Civil Case 4031, was filed by the private respondents against petitioner Layugan and Executive Director Baggayan[4] with the Regional Trial Court, Branch 2 of Cagayan,[5] which issued a writ ordering the return of the truck to private respondents.[6] Petitioner Layugan and Executive Director Baggayan filed a motion to dismiss with the trial court contending, inter alia, that private respondents had no cause of action for their failure to exhaust administrative remedies. The trial court denied the motion to dismiss in an order dated December 28, 1989.[7] Their motion for reconsideration having been likewise denied, a petition for certiorari was filed by the petitioners with the respondent Court of Appeals which sustained the trial courts order ruling that the question involved is purely a legal question.[8] Hence, this present petition,[9] with prayer for temporary restraining order and/or preliminary injunction, seeking to reverse the decision of the respondent Court of Appeals was filed by the petitioners on September 9, 1993. By virtue of the Resolution dated September 27, 1993,[10] the prayer for the issuance of temporary restraining order of petitioners was granted by this Court. Invoking the doctrine of exhaustion of administrative remedies, petitioners aver that the trial court could not legally entertain the suit for replevin because the truck was under administrative seizure proceedings pursuant to Section 68-A of P.D. 705, as amended by E.O. 277. Private respondents, on the other hand, would seek to avoid the operation of this principle asserting that the instant case falls within the exception of the doctrine upon the justification that (1) due process was violated because they were not given the chance to be heard, and (2) the seizure and forfeiture was unlawful on the grounds: (a) that the Secretary of DENR and his representatives have no authority to confiscate and forfeit conveyances utilized in transporting illegal forest products, and (b) that the truck as admitted by petitioners was not used in the commission of the crime. Upon a thorough and delicate scrutiny of the records and relevant jurisprudence on the matter, we are of the opinion that the plea of petitioners for reversal is in order. This Court in a long line of cases has consistently held that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before courts judicial power can be sought. The premature invocation of courts intervention is fatal to ones cause of action.[11] Accordingly, absent any finding of waiver or

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estoppel the case is susceptible of dismissal for lack of cause of action.[12] This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. However, we are not amiss to reiterate that the principle of exhaustion of administrative remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due process,[13] (2) when the issue involved is purely a legal question,[14] (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,[15] (4) when there is estoppel on the part of the administrative agency concerned,[16] (5) when there is irreparable injury,[17] (6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter,[18] (7) when to require exhaustion of administrative remedies would be unreasonable,[19] (8) when it would amount to a nullification of a claim,[20] (9) when the subject matter is a private land in land case proceedings,[21] (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention.[22] In the case at bar, there is no question that the controversy was pending before the Secretary of DENR when it was forwarded to him following the denial by the petitioners of the motion for reconsideration of private respondents through the order of July 12, 1989. In their letter of reconsideration dated June 28, 1989,[23] private respondents clearly recognize the presence of an administrative forum to which they seek to avail, as they did avail, in the resolution of their case. The letter, reads, thus: xxx If this motion for reconsideration does not merit your favorable action, then this letter should be considered as an appeal to the Secretary.[24] It was easy to perceive then that the private respondents looked up to the Secretary for the review and disposition of their case. By appealing to him, they acknowledged the existence of an adequate and plain remedy still available and open to them in the ordinary course of the law. Thus, they cannot now, without violating the principle of exhaustion of administrative remedies, seek courts intervention by filing an action for replevin for the grant of their relief during the pendency of an administrative proceedings. Moreover, it is important to point out that the enforcement of forestry laws, rules and regulations and the protection, development and management of forest lands fall within the primary and special responsibilities of the Department of Environment and Natural Resources. By the very nature of its function, the DENR should be given a free hand unperturbed by judicial intrusion to determine a controversy which is well within its jurisdiction. The assumption by the trial court, therefore, of the replevin suit filed by private respondents constitutes an unjustified encroachment into the domain of the administrative agencys prerogative. The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence.[25] In Felipe Ismael, Jr. and Co. vs. Deputy Executive Secretary,[26] which was reiterated in the recent case of Concerned Officials of MWSS vs. Vasquez,[27] this Court held: Thus, while the administration grapples with the complex and multifarious problems caused by unbriddled exploitation of these resources, the judiciary will stand clear. A long line of cases establish the basic rule that the courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. To sustain the claim of private respondents would in effect bring the instant controversy beyond the pale of the principle of exhaustion of administrative remedies and fall within the ambit of excepted cases heretofore stated. However, considering the circumstances prevailing in this case, we can not but rule out these assertions of private respondents to be without merit. First, they argued that there was violation of due process because they did not receive the May 23, 1989 order of confiscation of petitioner Layugan. This contention has no leg to stand on. Due process does not necessarily mean or require a hearing, but simply an opportunity or right to be heard.[28] One may be heard , not solely by verbal presentation but also, and perhaps many times more creditably and practicable than oral argument, through pleadings.[29] In administrative proceedings moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully equated with due process in its strict judicial sense.[30] Indeed, deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration,[31] as in the instant case, when private respondents were undisputedly given the opportunity to present their side when they filed a letter of reconsideration dated June 28, 1989 which was, however, denied in an order of July 12, 1989 of Executive Director Baggayan. In Navarro III vs. Damasco,[32] we ruled that :

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The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial type hearing is not at all times and in all instances essential. The requirements are satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice or hearing. Second, private respondents imputed the patent illegality of seizure and forfeiture of the truck because the administrative officers of the DENR allegedly have no power to perform these acts under the law. They insisted that only the court is authorized to confiscate and forfeit conveyances used in transporting illegal forest products as can be gleaned from the second paragraph of Section 68 of P.D. 705, as amended by E.O. 277. The pertinent provision reads as follows: SECTION 68. xxx xxx The court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as well as the machinery, equipments, implements and tools illegaly [sic] used in the area where the timber or forest products are found. (Underline ours) A reading, however, of the law persuades us not to go along with private respondents thinking not only because the aforequoted provision apparently does not mention nor include conveyances that can be the subject of confiscation by the courts, but to a large extent, due to the fact that private respondents interpretation of the subject provision unduly restricts the clear intention of the law and inevitably reduces the other provision of Section 68-A , which is quoted herein below: SECTION 68-A. Administrative Authority of the Department or His Duly Authorized Representative To Order Confiscation. In all cases of violation of this Code or other forest laws, rules and regulations, the Department Head or his duly authorized representative, may order the confiscation of any forest products illegally cut, gathered, removed, or possessed or abandoned, and all conveyances used either by land, water or air in the commission of the offense and to dispose of the same in accordance with pertinent laws, regulations and policies on the matter. (Underline ours) It is, thus, clear from the foregoing provision that the Secretary and his duly authorized representatives are given the authority to confiscate and forfeit any conveyances utilized in violating the Code or other forest laws, rules and regulations. The phrase to dispose of the same is broad enough to cover the act of forfeiting conveyances in favor of the government. The only limitation is that it should be made in accordance with pertinent laws, regulations or policies on the matter. In the construction of statutes, it must be read in such a way as to give effect to the purpose projected in the statute.[33] Statutes should be construed in the light of the object to be achieved and the evil or mischief to be suppressed, and they should be given such construction as will advance the object, suppress the mischief, and secure the benefits intended.[34] In this wise, the observation of the Solicitor General is significant, thus: But precisely because of the need to make forestry laws more responsive to present situations and realities and in view of the urgency to conserve the remaining resources of the country, that the government opted to add Section 68-A. This amendatory provision is an administrative remedy totally separate and distinct from criminal proceedings. More than anything else, it is intended to supplant the inadequacies that characterize enforcement of forestry laws through criminal actions. The preamble of EO 277-the law that added Section 68-A to PD 705-is most revealing: WHEREAS, there is an urgency to conserve the remaining forest resources of the country for the benefit and welfare of the present and future generations of Filipinos; WHEREAS, our forest resources may be effectively conserved and protected through the vigilant enforcement and implementation of our forestry laws, rules and regulations; WHEREAS, the implementation of our forestry laws suffers from technical difficulties, due to certain inadequacies in the penal provisions of the Revised Forestry Code of the Philippines; and WHEREAS, to overcome this difficulties, there is a need to penalize certain acts more responsive to present situations and realities; It is interesting to note that Section 68-A is a new provision authorizing the DENR to confiscate, not only conveyances, but forest products as well. On the other hand, confiscation of forest products by the court in a criminal action has long been provided for in Section 68. If as private respondents insist, the power on confiscation cannot be exercised except only through the court under Section 68, then Section 68-A would have no purpose at all. Simply put, Section 68-A would not have provided any solution to the problem perceived in EO 277, supra.[35] Private respondents, likewise, contend that the seizure was illegal because the petitioners themselves admitted in the Order dated July 12, 1989 of Executive Director Baggayan that the truck of private respondents was not used in the commission of the crime. This order, a copy of which was given to and received by the counsel of private respondents, reads in part , viz. :

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xxx while it is true that the truck of your client was not used by her in the commission of the crime, we uphold your claim that the truck owner is not liable for the crime and in no case could a criminal case be filed against her as provided under Article 309 and 310 of the Revised Penal Code. xxx[36] We observed that private respondents misread the content of the aforestated order and obviously misinterpreted the intention of petitioners. What is contemplated by the petitioners when they stated that the truck "was not used in the commission of the crime" is that it was not used in the commission of the crime of theft, hence, in no case can a criminal action be filed against the owner thereof for violation of Article 309 and 310 of the Revised Penal Code. Petitioners did not eliminate the possibility that the truck was being used in the commission of another crime, that is, the breach of Section 68 of P.D.705 as amended by E.O. 277. In the same order of July 12, 1989, petitioners pointed out: xxx However, under Section 68 of P.D.705 as amended and further amended by Executive Order No.277 specifically provides for the confiscation of the conveyance used in the transport of forest products not covered by the required legal documents. She may not have been involved in the cutting and gathering of the product in question but the fact that she accepted the goods for a fee or fare the same is therefor liable. xxx[37] Private respondents, however, contended that there is no crime defined and punishable under Section 68 other than qualified theft, so that, when petitioners admitted in the July 12, 1989 order that private respondents could not be charged for theft as provided for under Articles 309 and 310 of the Revised Penal Code, then necessarily private respondents could not have committed an act constituting a crime under Section 68. We disagree. For clarity, the provision of Section 68 of P.D. 705 before its amendment by E.O. 277 and the provision of Section 1 of E.O. No.277 amending the aforementioned Section 68 are reproduced herein, thus: SECTION 68. Cutting, gathering and/or collecting timber or other products without license. - Any person who shall cut , gather , collect , or remove timber or other forest products from any forest land, or timber from alienable and disposable public lands, or from private lands, without any authority under a license agreement, lease, license or permit, shall be guilty of qualified theft as defined and punished under Articles 309 and 310 of the Revised Penal Code xxx. (Underscoring ours; Section 68, P.D.705 before its amendment by E.O.277 ) SECTION 1. Section 68 of Presidential Decree No.705, as amended, is hereby amended to read as follows: Section 68. Cutting, gathering and/or collecting timber or other forest products without license. -Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code xxx." (Underscoring ours; Section 1, E.O No. 277 amending Section 68, P.D. 705 as amended) With the introduction of Executive Order No. 277 amending Section 68 of P.D. 705, the act of cutting, gathering, collecting, removing, or possessing forest products without authority constitutes a distinct offense independent now from the crime of theft under Articles 309 and 310 of the Revised Penal Code, but the penalty to be imposed is that provided for under Article 309 and 310 of the Revised Penal Code. This is clear from the language of Executive Order No. 277 when it eliminated the phrase shall be guilty of qualified theft as defined and punished under Articles 309 and 310 of the Revised Penal Code and inserted the words shall be punished with the penalties imposed under Article 309 and 310 of the Revised Penal Code . When the statute is clear and explicit, there is hardly room for any extended court ratiocination or rationalization of the law.[38] From the foregoing disquisition, it is clear that a suit for replevin can not be sustained against the petitioners for the subject truck taken and retained by them for administrative forfeiture proceedings in pursuant to Section 68-A of the P. D. 705, as amended. Dismissal of the replevin suit for lack of cause of action in view of the private respondents failure to exhaust administrative remedies should have been the proper course of action by the lower court instead of assuming jurisdiction over the case and consequently issuing the writ ordering the return of the truck. Exhaustion of the remedies in the administrative forum, being a condition precedent prior to ones recourse to the courts and more importantly, being an element of private respondents right of action, is too significant to be waylaid by the lower court. It is worth stressing at this point, that a suit for replevin is founded solely on the claim that the defendant wrongfully withholds the property sought to be recovered. It lies to recover possession of personal chattels that are unlawfully detained.[39] To detain is defined as to mean to hold or keep in custody,[40] and it has been held that there is tortuous taking whenever there is an unlawful meddling with the property, or an exercise or claim of dominion over it, without any pretense of authority or right; this, without manual seizing of the property is sufficient.[41] Under the Rules of Court, it is indispensable in replevin proceedings, that the plaintiff must show by his own affidavit that he is entitled to the possession of property, that the property is wrongfully detained by the defendant, alleging the cause of detention, that the same has not been taken for tax assessment, or seized under execution, or attachment, or if so seized, that it is exempt from such seizure, and the actual value of the property.[42] Private respondents miserably failed to convince this Court that a wrongful detention of the subject truck obtains in the instant case. It should be noted that the truck was seized by the petitioners because it was

36

transporting forest products with out the required permit of the DENR in manifest contravention of Section 68 of P.D. 705 as amended by E.O 277. Section 68-A of P.D. 705, as amended, unquestionably warrants the confiscation as well as the disposition by the Secretary of DENR or his duly authorized representatives of the conveyances used in violating the provision of forestry laws. Evidently, the continued possession or detention of the truck by the petitioners for administrative forfeiture proceeding is legally permissible, hence , no wrongful detention exists in the case at bar. Moreover, the suit for replevin is never intended as a procedural tool to question the orders of confiscation and forfeiture issued by the DENR in pursuance to the authority given under P.D.705, as amended. Section 8 of the said law is explicit that actions taken by the Director of the Bureau of Forest Development concerning the enforcement of the provisions of the said law are subject to review by the Secretary of DENR and that courts may not review the decisions of the Secretary except through a special civil action for certiorari or prohibition. It reads : SECTION 8 . REVIEW - All actions and decisions of the Director are subject to review, motu propio or upon appeal of any person aggrieved thereby, by the Department Head whose decision shall be final and executory after the lapse of thirty (30) days from the receipt of the aggrieved party of said decision, unless appealed to the President in accordance with Executive Order No. 19, Series of 1966. The Decision of the Department Head may not be reviewed by the courts except through a special civil action for certiorari or prohibition. WHEREFORE, the Petition is GRANTED; the Decision of the respondent Court of Appeals dated October 16, 1991 and its Resolution dated July 14, 1992 are hereby SET ASIDE AND REVERSED; the Restraining Order promulgated on September 27, 1993 is hereby made permanent; and the Secretary of DENR is directed to resolve the controversy with utmost dispatch. SO ORDERED. Regalado, (Chairman), Romero, Puno, and Mendoza, JJ., concur.

DR. EMILY M. MAROHOMBSAR, in her Official Capacity as President of the Mindanao State University, petitioner, vs. COURT OF APPEALS and BILLANTE G. MARUHOM, respondents. DECISION GONZAGA-REYES, J.: HTML The present petition for review on certiorari seeks to nullify the decision[1] of the Court of Appeals dated June 11, 1996 in CA-G.R. SP No. 39506 and its subsequent resolution dated September 9, 1996 denying petitioners motion for reconsideration. The antecedent facts, as found by the appellate court, are as follows: Private respondent Billante S. Guinar-Mahurom was appointed as Technical Assistant assigned to the Office of the Chancellor of the Mindanao State University sometime in 1988. That appointment was confirmed by the Board of Regents in its Resolution No. 279, series of 1988, promulgated on November 8, 1988. When the Salary Standardization Law (R.A. 6788) was enacted, private respondents position was converted into Executive Assistant II. However, since private respondent at that time was not a Civil Service eligible, she was extended a temporary appointment duly noted by the Board of Regents (Resolution No. 1, series of 1991). When private respondent passed the Civil Service career professional examinations, she was immediately extended a permanent appointment by then MSU President Ahmad Alonto, Jr. on May 3, 1991. Private respondent continued to hold the position until February 15, 1993 when she received the letter of termination from petitioner Marohombsar after the latter had assumed office as President of the University (January 5, 1993). The cause of termination, which was made effective on February 28, 1993, was "in view of the urgent need to establish a new order and maintain the trust and confidence reposed upon the Office of the President as demanded by the standards of Public Service." Private respondent thereafter sought a reconsideration of her termination but her request was denied, hence, on April 30, 1993, she filed a complaint for illegal termination before the Regional Office No. 12 of the Civil Service Commission. On May 10, 1993 the Regional Director found the complaint meritorious. It was noted that private respondents position as Executive Assistant II is a permanent position and is "covered by the Constitutional guarantee of security of tenure." Thus, the Regional Director held: yacats "WHEREFORE, foregoing premises considered, the services of Mrs.

37

Brillante G. Maruhom as Executive Assistant were illegally terminated. Accordingly, she should be immediately reverted to this position with payment of salaries and other benefits that would have accrued to her during the period she was out of the service." Despite said ruling, however, private respondent was not reinstated by petitioner, thereby prompting the former to write to the Regional Director on July 2, 1993 for a "request for an alternative remedy for the immediate reversion of Ms. Maruhom to her former position and the payment of her salary as Executive Assistant II, Mindanao University, Marawi City." The Regional Director promptly responded by issuing a letter-directive on November 5, 1993 ordering herein petitioner to comply with the order of May 3, 1993 under pain of penal and administrative sanctions. On December 6, 1993, petitioner wrote a letter-request for reconsideration of the May 3, 1993 order to the Regional Director contending that the appointment of private respondent was not valid for lack of confirmation by the Board of Regents before it was submitted to the Civil Service Commission for attestation. On March 21, 1994, the Regional Director referred the case to respondent Commission and submitted his Report and Recommendation dated March 11, 1994, recommending a reiteration of the earlier directive with the imposition of a "stern warning xxx that the order of this Commission must be complied with even if that University may not agree with it" (Report of Investigation, Annex "B", p. 69, Rollo). On June 22, 1994, petitioner was ordered by the CSC Legal Office to submit her comment to the Report and Recommendation submitted by the Regional Director. Petitioner complied on August 17, 1994. Respondent Commission, on December 13, 1994, resolved the case in favor of private respondent. The dispositive portion of its decision reads: CODES "WHEREFORE, the Commission hereby directs the President of the Mindanao State University to explain within five (5) days from receipt of this Order why he should not be charged for not reinstating Billante S. Guinar-Maruhom as Executive Assistant II and for not paying her salaries and other benefits from the time of the termination of her services up to her reinstatement." In compliance with said directive, petitioner submitted her comment contending that her letter-request for reconsideration of the Regional Directors order is still pending and, therefore, she has no obligation to comply with the order of reinstatement yet; that besides, private respondents appointment is not valid for lack of confirmation by the Board of Regents and that even if valid, private respondents appointment was confidential and, therefore, co-terminus with the term of office of then MSU President Alonto. On October 17, 1995, respondent Commission issued Resolution No. 95-6446 and held: The contention that the tenure of Maruhom as Executive Assistant II is coterminous with the term of office of then MSU President Alonto, the one who appointed her, must be rejected. There is no showing that said position has been declared as primarily confidential in nature by the Commission pursuant to its authority under the Administrative Code of 1987. In the absence of such declaration, the position is thus considered under the career service. Hence, an appointee who holds an appointment thereto under permanent status enjoys security of tenure as guaranteed by law. Thus, she could not be separated from the service except for cause and after due process. WHEREFORE, MSU President Emily M. Marohombsar is hereby directed to immediately reinstate Billante G. Maruhom to her former position of Executive Assistant II and to pay all her back salaries and other benefits due her from the date of her separation up to the date of her reinstatement in the service. Further failure or defiance on the part of said official to do what is required, will be considered contempt of this Commission and grounds for administrative sanctions."[2] olanski It is patent from the foregoing recital that private respondent was first appointed Technical Assistant in 1988 and the MSU Board of Regents (BOR) confirmed her appointment per its Resolution No. 279, s. 1988. The position

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title was subsequently reclassified and retitled to Executive Assistant II upon the effectivity of Republic Act 6758, otherwise known as the Salary Standardization Law. Since private respondent did not possess the appropriate civil service eligibility required of the position at that time, she was only extended a temporary appointment as Executive Assistant II which was noted by the MSU Board of Regents. Subsequently, upon acquiring Career Service Professional Eligibility, she was extended a permanent appointment to the position of Executive Assistant II by then MSU President Ahmad E. Alonto, Jr. on May 3, 1991. This appointment was approved as permanent by the Civil Service Commission Regional Office No. 12 on June 25, 1991. She assumed office and discharged the duties thereof, without any objection from the Board of Regents. When MSU President Alonto was replaced by herein petitioner Dr. Emily M. Marohombsar on January 5, 1993, private respondent continued her employment and received the corresponding salary and other benefits from the MSU until she was summarily terminated on February 28, 1993. The Civil Service Commission declared her termination as illegal and ordered the payment of all her back salaries and other benefits due her from the date of her separation up to the date of her reinstatement in the service. On appeal, the Court of Appeals affirmed the Order[3] dated December 13, 1994 of the Civil Service Commission (CSC) as well as the latters Resolution No. 956446[4] dated October 17, 1995. From the decision of the Court of Appeals and after its motion for reconsideration had been denied, petitioner Dr. Emily M. Marohombsar (in her official capacity as President of the Mindanao State University) filed the present petition on the ground that the Court of Appeals erred in declaring that private respondents termination was illegal; and in ordering the payment of back salaries and other benefits from the date of private respondents separation up to the date of her reinstatement in the service. The reasons advanced to support the instant petition are briefly stated as follows: 1) Private respondents appointment as Executive Assistant II dated May 3, 1991 lacks the requisite confirmation by the Board of Regents pursuant to the Mindanao State University (MSU) charter and code, hence, ineffective; 2) Private respondents position as Executive Assistant II is primarily confidential, hence, coterminous with the term of office of the appointing authority.[5] We find no merit in the petition and hold that the same should be denied. The power to appoint is vested in the Board of Regents upon the recommendation of the President as follows: "Section 6. The Board of Regents shall have the following powers and duties, in addition to its general powers of administration and the exercise of the powers of the corporation: haideem xxx......xxx......xxx (e) To appoint on the recommendation of the President of the University, professors, lecturers and other employees of the University. x x x "[6] The MSU Code of Governance reiterates the power of the President to recommend qualified persons to the Board of Regents to fill vacancies and new positions as follows: ART. 41. General Powers of the President: xxx......xxx......xxx (g) He shall recommend qualified persons to fill vacancies and new positions created and funded by the Board; provided, that such appointment shall be submitted in the next regular meeting of the Board; Provided Further, that no payment of salary shall be effected unless approved by the Board of Regents.[7] Based on the foregoing, petitioner correctly theorizes that private respondents appointment was merely ad interim considering the appointment was issued by the University President rather than the MSU Board of Regents prior to submission to the Civil Service Commission for attestation. Petitioner, however, errs in concluding that an ad interim appointment is invalid and ineffective, therefore, terminable at any time and for any cause. kirsten The essence of ad interim appointments has been sufficiently discussed in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court[8] where the universitys charter similarly vests the power of appointment in the Board of Regents and the power to recommend in the President. It was therein held that under Philippine law and jurisprudence, an ad interim appointment is used to denote the manner in which the appointment is made; and it is not descriptive of the nature of the appointment given to the appointee.[9] By way of illustration, the Court stated in said case that "it is an appointment done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University charter with the power of appointment, is unable to act."[10] As further explained by the Court in said case: "In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the Board issues the appointment. But when the Board is not in session, the President is authorized to issue ad interim appointments. Such appointments are permanent but their terms are only until the Board disapproves them. If confirmed, the appointees term is converted into the regular term inherent in the position."[11] There is no question then, as petitioner herself theorizes, that private respondents appointment was ad interim

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having been issued by the President instead of the Board of Regents. The issue at this point is whether an employee holding an ad interim appointment may be terminated at any time and for any cause as advanced by petitioner. We rule in the negative. barth We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondents appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board disapproves them.[12] There is absolutely no showing that the Board of Regents disapproved private respondents appointment. On the contrary, private respondent assumed the position, discharged her duties and received the corresponding salary and benefits without objection from the MSU Board of Regents from the date of her appointment on May 3, 1991 or for a period of almost two (2) years until her dismissal effective February 28, 1993. It is worth mentioning that the MSU Code of Governance provides that "(n)o payment of salary shall be effected unless approved by the Board of Regents."[13] Considering that private respondent was paid her corresponding salary and benefits for almost two (2) years from her appointment as Executive Assistant II up to her termination, the Board of Regents may be deemed to have tacitly approved her appointment. Petitioners other contention that private respondents position as Executive Assistant II is classified as primarily confidential and is thus co-terminous with the tenure of office of the appointing official must likewise be rejected. In support thereof, petitioner cites Memorandum Circular (MC) No. 13, s. 1990 and MC No. 1, s. 1993 of the Civil Service Commission allegedly declaring the said position as primarily confidential. The portion of MC No. 13, s. 1990 referred to by petitioner reads thus: "Considering that the appointee to said position will be performing duties which will require absolute trust and confidence of the Undersecretary, the Commission has declared as primarily confidential in nature pursuant to Resolution No. 93-073 the position of Executive Assistant, Chauffeur/Driver and all other positions located in the Office of the Undersecretary per approved Position Allocation List. Hence, the term of office of the appointees therein shall be coterminous with the official they serve." On the other hand, the portion of MC No. 1, s. 1990 relied upon by petitioner reads as follows: "Pursuant to CSC Resolution No. 90-261 dated March 5, 1990, the position of Head Executive Assistant has been declared as primarily confidential in nature. The term of office of the appointees to said position becomes coterminous with that of the appointing authority. In cases where the executive being assisted is not the appointing authority, the term of office of the Head Executive Assistant shall be dependent upon the formers recommendation." Jksm Both MCs are not applicable to the instant case. MC No. 01, s. 1993 refers to Executive Assistant, Chauffeur/Driver and other positions located in the Office of the Undersecretary as clearly provided in the subject heading thereof as follows: "SUBJECT: Declaration of the Executive Assistant, Chauffeur/Driver and all other positions located in the office of the Undersecretary as primarily Confidential in Nature." Herein private respondent is holding the position of Executive Assistant II in the Office of the Chancellor. On the other hand, MC No. 01, s. 1990 clearly refers to Head Executive Assistant and not Executive Assistant II. On this score, the appellate court correctly ruled thus: "There is nothing in the records that would indicate any justification for the respondent Commission to classify the position of private respondent as primarily confidential. Petitioner failed to specify the particular duty of private respondents that would classify her position as highly confidential. Petitioner merely invoked CSC memorandum Circular No. 1, s. 1993, which classified the position of Executive Assistant as primarily confidential in nature. However, that memorandum circular exclusively refers to Executive Assistants assigned in the office of Undersecretaries and not to University Presidents or Chancellors. Such reliance on the art of petitioner is, therefore, misplaced. In any event, even if reliance is made on said circular, private respondents case still would not fall under such classification since it was categorically stated in the circular that those incumbents to the reclassified positions whose appointments are permanent" "shall retain their permanent status until said positions are vacated" (CSC memorandum Circular No. 1, s. 1993).[14] Based on the foregoing, private respondent holds an appointment under permanent status and thus enjoys

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security of tenure as guaranteed by law. As an employee in the civil service and as a civil service eligible, private respondent is entitled to the benefits, rights and privileges extended to those belonging to the service. Private respondent could not be removed or dismissed from the service without just cause and without observing the requirements of due process as what happened in the present case.[15] Inescapable then is the conclusion that private respondent was illegally dismissed when she was summarily terminated from the service by mere letter on the alleged ground of "urgent need to establish a new order and maintain the trust and confidence reposed upon the Office of the President x x x." Chiefx However, according to settled jurisprudence, an illegally terminated civil service employee is entitled to back salaries limited only to a maximum period of five years[16] and not full back salaries from her illegal termination up to her reinstatement. WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals is AFFIRMED subject to the modification in the payment of back salaries as stated above. SO ORDERED. Panganiban, and Purisima, JJ., concur. Melo, J., (Chairman), no part. Vitug, J., no part, close association with the family of the party

G.R. No. 108951 March 7, 2000 JESUS B. DIAMONON, petitioner, vs. DEPARTMENT OF LABOR AND EMPLOYMENT; HON. BIENVENIDO E. LAGUESMA, as the undersecretary of Labor; MANASES 1T. CRUZ, in his capacity as the Med-Arbiter; ATTY. ZOILO DE LA CRUZ, JR., and MEMBERS OF THE NATIONAL CONGRESS OF UNIONS IN THE SUGAR INDUSTRY OF THE PHILIPPINES (NACUSIP) and PHILIPPINE AGRICULTURAL COMMERCIAL AND INDUSTRIAL WORLER'S UNION (PACIWU), respondents. DE LEON, JR., J.: 2 Before us is a petition for certiorari seeking to annul the twin Orders dated December 29, 1992 and January 25, 3 1993 of public respondent Bienvenido E. Laguesma, acting then as Undersecretary, now the Secretary, of the 4 Department of Labor and Employment (DOLE), in his affirmance of the dismissal by the Med-Arbiter of the complaint for unauthorized and illegal disbursement of union funds filed by petitioner Jesus B. Diamonon against private respondent Atty. Zoilo V. de la Cruz and Sofia P. Mana-ay. The facts of the case are the following: Petitioner served as the National Executive Vice President of the National Congress of Unions in the Sugar Industry of the Philippines (NACUSIP) and Vice President for Luzon of the Philippine Agricultural, Commercial and Industrial Workers Union (PACIWU). 5 In a letter dated March 23, 1991, petitioner learned of his removal from the positions he held in both unions in a 6 7 resolution approved during a meeting of the National Executive Boards of both unions. 8 On April 22, 1991, petitioner sought reconsideration of the resolution on his removal. At the same time, he 9 initiated a complaint (hereafter referred to as FIRST) before the DOLE against the National President of NACUSIP and PACIWU, private respondent Atty. Zoilo V. de la Cruz, Jr., and the members of the National Executive Boards of NACUSIP and PACIWU questioning the validity of his removal from the positions he held in the two unions. 10 While the FIRST case was pending with the Med-Arbiter, petitioner filed on May 16, 1991 a second complaint (hereafter referred to as SECOND) against private respondent Atty. Zoilo V. de la Cruz, Jr., and the National Treasurer of NACUSIP and PACIWU, Sofia P. Mana-ay. He accused them of three (3) offenses, namely: (a) wanton violation of the Constitution and By-Laws of both organizations, NACUSIP and PACIWU; (b) unauthorized and illegal disbursements of union funds of both organizations; (c) and abuse of authority as national officers of both organizations. 11 On August 2, 1991, an Order was issued in the FIRST case declaring that petitioner's removal from the 12 positions he held is null and void. Private respondents appealed this decision to the public respondent DOLE. 13 In view of the pendency of their appeal in the FIRST case, private respondents filed a Motion to Dismiss dated October 21, 1991 in the SECOND case. 14 In an Order dated November 5, 1991, the Med-Arbiter dismissed the SECOND case on the ground of lack of personality of petitioner to file the complaint in view of his removal from the offices he held. On December 27, 1991, public respondent Laguesma, acting as the then Undersecretary of DOLE, decided on 15 the FIRST case on appeal and issued a Resolution which affirmed the assailed Order dated August 2, 1991 declaring as null and void petitioner's removal from the positions he held. 16 In view of the adverse Order dated November 5, 1991 dismissing the SECOND case, petitioner appealed to

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the public respondent DOLE. Public respondent Laguesma, issued the assailed Order dated December 29, 1992, holding that petitioner's failure to show in his complaint that the administrative remedies provided for in the constitution and by-laws of both unions, have been exhausted or such remedies are not available, was fatal to 19 petitioner's cause. 18 Resultantly, he affirmed the dismissal of the complaint. 20 Petitioner sought reconsideration of the Order dated December 29, 1992. However, public respondent in his 21 Order dated January 25, 1993 denied petitioner's motion for reconsideration. Hence, this petition. Petitioner anchors his petition on two (2) grounds, to wit: I. PUBLIC RESPONDENT HONORABLE BIENVENIDO V. LAGUESMA HAS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISS [sic] THE APPEAL INTERPOSED FROM THE ORDER OF THE MED ARBITER MENESIS [sic] T. CRUZ, AND WHEN IT DENIED THE MOTION FOR RECONSIDERATION ON FLIMSY GROUNDS. II. THE CASE OF THE PETITIONER IS QUITE MERITORIOUS AND TO DISREGARD THE SAME WOULD [sic] TANTAMOUNT TO WILLFULLY [sic] CLOSING OUR EYES TO AVOID SEEING AND REALIZING THE NAKED 22 TRUTH. Petitioner emphatically stresses that the only issue on appeal before the DOLE was petitioner's alleged lack of personality to file the complaint. When public respondent "switched" the ground for dismissal of the complaint from "lack of personality of the [petitioner] to file the complaint" to "non-exhaustion of administrative remedies," he staunchly claims that the latter committed grave abuse of discretion amounting to lack or excess of 23 jurisdiction. For, in doing so, the challenged orders "went outside the issues and purported to adjudicate 24 something upon which the parties were not heard." The petition lacks merit. 25 Generally, an appellate court may only pass upon errors assigned. However, this rule is not without 26 27 exceptions. In the following instances, the Supreme Court ruled that an appellate court is accorded a broad discretionary power to waive the lack of assignment of errors and consider errors not assigned: (a) Grounds not assigned as errors but affecting the jurisdiction of the court over the subject matter; (b) Matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) Matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of a justice or to avoid dispensing piecemeal justice; (d) Matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) Matters not assigned as errors on appeal but closely related to an error assigned; (f) Matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. There is no reason why this rule should not apply to administrative bodies as well, like the case before us, for the instant controversy falls squarely under the exceptions to the general rule. In the instant case, not only did petitioner fail to comply with Section 2, Rule VIII, Book V of the Implementing 28 Rules and Regulations of the Labor Code as amended but also the record reveals that neither did he exhaust 29 the remedies set forth by the Constitution and by-laws of both unions. In the National Convention of PACIWU and NACUSIP held on August 10 and 11, 1991, respectively, nothing was heard of petitioner's complaint against private respondents on the latter's alleged unauthorized and illegal disbursement of union funds. In fact, what the National Convention resolved was to approve and adopt the resolution of the National Executive Board removing 30 petitioner from the positions he held. His failure to seek recourse before the National Convention on his complaint against private respondents taints his action with prematurity. When the Constitution and by-laws of both unions dictated the remedy for intra-union dispute, such as petitioner's complaint against private respondents for unauthorized or illegal disbursement of unions funds, this should be resorted to before recourse can be made to the appropriate administrative or judicial body, not only to give the grievance machinery or appeals' body of the union the opportunity to decide the matter by itself, but also to prevent unnecessary and premature resort to administrative or judicial bodies. Thus, a party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief, but also 31 pursue it to its appropriate conclusion before seeking judicial intervention. This rule clearly applies to the instant case. The underlying principle of the rule on exhaustion of administrative remedies rests on the presumption that when the administrative body, or grievance machinery, as in this case, is afforded a chance to 32 pass upon the matter, it will decide the same correctly. Petitioner's premature invocation of public respondent's 33 intervention is fatal to his cause of action. Evidently, when petitioner brought before the DOLE his complaint charging private respondents with unauthorized and illegal disbursement of union funds, he overlooked or deliberately ignored the fact that the

17

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same is clearly dismissible for non-exhaustion of administrative remedies. Thus, public respondent Bienvenido E. Laguesma, in dismissing petitioner's complaint, committed no grave abuse of discretion. WHEREFORE, the petition is hereby DISMISSED, and the twin Orders dated December 29, 1992 and January 25, 1993 by public respondent Bienvenido E. Laguesma affirming dismissal of the complaint dated May 15, 1991 filed by petitioner against private respondents are AFFIRMED. No costs.1wphi1.nt SO ORDERED. Bellosillo, Mendoza and Buena, JJ., concur. Quisumbing, J., noo part, close relation to a party.

THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS, EXECUTIVE SECRETARY RONALDO B. ZAMORA, and ATTY. CARINA J. DEMAISIP, petitioners, vs. ATTY. JOSEFINA G. BACAL, respondent. DECISION MENDOZA, J.: This case involves the appointment and transfer of career executive service officers (CESOs). More specifically, it concerns the appointment of respondent Josefina G. Bacal, who holds the rank of CESO III, to the position of Chief Public Attorney in the Public Attorneys Office, which has a CES Rank Level I, and her subsequent transfer, made without her consent, to the Office of the Regional Director of the PAO. In its decision[1] rendered on March 25, 1999, the Court of Appeals declared respondent Josefina G. Bacal entitled to the position of Chief Public Attorney in the Public Attorneys Office. Petitioners moved for a reconsideration, but their motion was denied by the appeals court in its resolution dated July 22, 1999. Hence this petition for review on certiorari. Petitioners contend that the transfer of respondent to the Office of the Regional Director of the PAO is appropriate considering her rank as CESO III. The background of this case is as follows: Respondent Josefina G. Bacal passed the Career Executive Service Examinations in 1989. On July 28, 1994, she was conferred CES eligibility and appointed Regional Director of the Public Attorneys Office. On January 5, 1995, she was appointed by then President Fidel V. Ramos to the rank of CESO III. On November 5, 1997, she was designated by the Secretary of Justice as Acting Chief Public Attorney. On February 5, 1998, her appointment was confirmed by President Ramos so that, on February 20, 1998, she took her oath and assumed office. On July 1, 1998, petitioner Carina J. Demaisip was appointed chief public defender by President Joseph Estrada. Apparently because the position was held by respondent, another appointment paper was issued by the President on July 6, 1998 designating petitioner Demaisip as chief public defender (formerly chief public attorney), PUBLIC DEFENDER'S OFFICE, DEPARTMENT OF JUSTICE vice ATTY. JOSEFINA G. BACAL, effective July 1, 1998.[2] On the other hand, respondent was appointed Regional Director, Public Defenders Office by the President. On July 7, 1998, petitioner Demaisip took her oath of office. President Estrada then issued a memorandum, dated July 10, 1998, to the personnel of the Public Defenders Office announcing the appointment of petitioner Demaisip as CHIEF PUBLIC DEFENDER. Petitioner Secretary of Justice was notified of the appointments of petitioner Demaisip and respondent Bacal on July 15, 1998. On July 17, 1998, respondent filed a petition for quo warranto questioning her replacement as Chief Public Attorney. The petition, which was filed directly with this Court, was dismissed without prejudice to its refiling in the Court of Appeals. Accordingly, respondent brought her case in the Court of Appeals which, on March 25, 1999, ruled in her favor, finding her to be lawfully entitled to the Office of Chief Public Attorney. Petitioners seek the reversal of the decision of the Court of Appeals on the following grounds I. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT JOSEFINA G. BACAL, A CAREER EXECUTIVE SERVICE OFFICER, HAS A VALID AND VESTED RIGHT TO THE POSITION OF CHIEF PUBLIC ATTORNEY AND, AS SUCH, CANNOT BE REASSIGNED OR TRANSFERRED TO THE POSITION OF REGIONAL DIRECTOR, PUBLIC ATTORNEYS OFFICE, DEPARTMENT OF JUSTICE. II. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT BACAL, WHO HOLDS A CES RANK LEVEL III, WAS REASSIGNED OR TRANSFERRED TO A POSITION WHICH DOES NOT CORRESPOND TO HER PRESENT RANK LEVEL INASMUCH AS THE POSITION OF BUREAU REGIONAL DIRECTOR CARRIES A CES RANK LEVEL V ONLY. CONTRARY TO THE CONCLUSIONS OF THE COURT OF APPEALS, SAID POSITION OF REGIONAL DIRECTOR, PUBLIC ATTORNEYS OFFICE, THE POSITION TO WHICH RESPONDENT BACAL WAS REASSIGNED OR TRANSFERRED, CARRIES A CES RANK LEVEL III WHICH CORRESPONDS TO HER CES RANK III LEVEL. AS AN OFFICER

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WITH A RANK III LEVEL, RESPONDENT BACAL IS NOT THEREFORE ELIGIBLE FOR THE POSITION OF CHIEF PUBLIC ATTORNEY WHICH CARRIES A CES RANK LEVEL I. III. UPON HER REASSIGNMENT OR TRANSFER TO THE POSITION OF REGIONAL DIRECTOR, RESPONDENT BACAL DID NOT LOSE HER CES RANK III AND HER RIGHT TO RECEIVE THE SALARY CORRES-PONDING TO HER PRESENT RANK. IV. RESPONDENT BACAL FAILED TO SHOW THAT SHE HAS A CLEAR RIGHT TO THE POSITION OF CHIEF PUBLIC ATTORNEY. V. RESPONDENT BACAL FAILED TO FULLY EXHAUST THE ADMINISTRATIVE REMEDIES AVAILABLE TO HER BEFORE FILING THE PETITION FOR QUO WARRANTO WITH THE COURT OF APPEALS.[3] I. Exhaustion of Administrative Remedies We first consider petitioners contention that respondents quo warranto suit should have been dismissed for failure of respondent to exhaust administrative remedies by appealing to the Office of the President. The contention has no merit. If, as has been held, no appeal need be taken to the Office of the President from the decision of a department head because the latter is in theory the alter ego of the former,[4] there is greater reason for not requiring prior resort to the Office of the President in this case since the administrative decision sought to be reviewed is that of the President himself. Indeed, we have granted review in other cases involving the removal of the Administrator of the Philippine Overseas Employment Administration[5] and the Executive Director of the Land Transportation Office[6] without requiring the petitioners to exhaust administrative remedies considering that the administrative actions in question were those of the President. In any event, the doctrine of exhaustion of administrative remedies does not apply when the question raised is purely legal.[7] In this case, the question is whether respondents transfer to the position of Regional Director of the Public Attorneys Office, which was made without her consent, amounts to a removal without cause. This brings us to the main issue in this appeal. II. Merits of the Case In holding that respondents transfer amounted to a removal without cause, the Court of Appeals said: . . . Her appointment as Regional Director was in effect a removal in the guise of transfer, to repeat, without her consent. Having been validly appointed Chief Public Defender by the President on February 8, 1998, would naturally entitle her to security of tenure since on the basis of the appointment, she was appointed, not merely assigned, to a particular station. Her involuntary transfer, through appointment, to that of a mere Regional Director, did not either conform to the rules on the constitutional protection of security of tenure. Above all, her supposed appointment as a Regional Director is not only temporary but is on the other hand permanent wherein she lost her position as Chief Public Attorney, or her connection with the previous position being severed. . . . . In the case of the petitioner, there is certainly a diminution in duties and responsibilities when she was downgraded through the July 6, 1998 appointment, involuntarily made, from that of Chief Public Attorney to a mere Regional Director. To repeat, the rank equivalent to a Bureau Director is Rank III while that of a mere Bureau Regional Director is Rank V. Diminution in duties and responsibilities, certainly becomes apparent and then in the matter of salary, the basic salary of a Chief Public Attorney together with all the perks, would amount to P575,199.00. In the case of a Regional Director, his basic salary together with all the perks, would only amount to P341,479.96. Admittedly, when a CESO is assigned or made to occupy a position with a lower salary grade, he shall supposedly continue to be paid his salary that attaches to his CES rank. It cannot, on the other hand, be denied that the moment a non-CESO is appointed to a CES position, he shall receive, at the same time, the salary of his CES position. There is merit in the petitioners argument that allowing the Regional Director to receive continuously the salary rate of Chief Public Attorney in effect would amount to an illegal consequence since the disbursement of public funds, as budgeted, provides funding for only one Chief Public Attorney. The dilemma arises when both the petitioner and respondent Demaisip would be claiming the salary of a Chief Public Attorney. There is no pretension either in the Brief of the public respondents that there has been a supplemental budget for the petitioner, now downgraded to a mere Regional Director, to be receiving continuously the salary scale of a Chief Public Attorney. . . . . Changing a CESO, Rank III, with a non-CESO eligible nor a CESO defies the recruitment, selection and appointment process of the Career Executive Service. As a matter of fact, as a rule (1997 Revised Edition, Handbook, Career Executive Service), the appointment to most positions in the CES is supposed to be made by the President only from the list of CES eligibles, but recommended by the CES Board. Admittedly, an incumbent of a CES position may qualify for appointment to a CES rank, only upon the confirming of a CES Eligibility and compliance with the other requirements being prescribed by the Board (Ibid. p. 5). Precisely, the CES was created pursuant to PD No. 1 (adopting the Integrated Reorganizational Plan, dated September 24, 1972), if only to form a continuing pool of well-selected and development-oriented career administrators who shall provide

44

competent and faithful service (Ibid. p. 2). We cannot see this from that of the petitioner then being replaced by a non-CESO.[8] The appealed decision will not bear analysis. First. What should be emphasized in this case is that respondent Josefina G. Bacal is a CESO III and that the position of Regional Director of the PAO, to which she was transferred, corresponds to her CES Rank Level III and Salary Grade 28. This was her position before her appointment on February 5, 1998 to the position of Chief Public Attorney of the PAO, which requires a CES Rank Level I for appointment thereto. Respondent Bacal therefore has no ground to complain. She may have been considered for promotion to Rank I to make her appointment as Chief Public Attorney permanent. The fact, however, is that this did not materialize as petitioner Carina J. Demaisip was appointed in her place. If respondent was paid a salary equivalent to Salary Grade 30 while she was holding that office, it was only because, under the law, if a CESO is assigned to a position with a higher salary grade than that corresponding to his/her rank, he/she will be allowed the salary of the CES position. As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig:[9] It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moments notice, conformably to established jurisprudence. . . . The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. . . . It is contended, however, that respondent is qualified for the position of Chief Public Attorney because this position has a CES Rank Level III, while that of Regional Director, Public Attorneys Office, has a CES Rank Level V. This is not so. The position of Chief Public Attorney has a CES Rank Level I and a Salary Grade 30, while that of Regional Director of the PAO has a CES Rank Level III and a Salary Grade 28. This is shown by the following:[10] 1. Certification, dated April 6, 1999, issued by the Secretary of the Department of Budget and Management (DBM), which states that the position of the head of Public Attorneys Office (PAO) is classified as Chief Public Attorney at Salary Grade 30 (Annex A of Annex M, Petition). 2. Certification, dated April 15, 1999, issued by Elmor D. Juridico, then Executive Director of the CES Board, which states that the Rank equivalent to the position of Chief Public Attorney and Regional Public Attorney are CESO Rank I and CESO Rank III respectively (Annex B of Annex M, Petition); and 3. Certification, dated July 8, 1998, previously issued to respondent Bacal by then Executive Director Juridico of the CES Board, stating that the position of Chief Public Attorney has a CES rank equivalent of Rank I. (vide Annex C of Annex M, Petition). The certification reads: This is to certify that Atty. JOSEFINA G. BACAL, Chief Public Attorney, Public Attorneys Office was conferred CES Eligibility on July 28, 1994 per Board Resolution No. 94-4620 and was appointed Career Executive Service Officer (CESO) Rank III by then President Fidel V. Ramos on January 5, 1995. She is yet to fulfill the requirements for an adjustment of her CES rank (from CES Rank III to Rank I) to a level equivalent to her present position. This certification is issued upon the request of Atty. Bacal for whatever purpose it may serve best. Second. The Court of Appeals held that respondent Bacal had acquired security of tenure as Chief Public Attorney by the mere fact of her appointment to that position. This is likewise the point of the dissent of Justice Gonzaga-Reyes who contends that a CES eligibility is all that a person needs in order to acquire security of tenure in any position embraced in the Career Executive service; that a CESO rank is only necessary to differentiate a CESOs general managerial duties/responsibilities, personal qualifications, and demonstrated competence; and that no other CES examination is required for appointment to a higher rank. Appointments, assignments, reassignments, and transfers in the Career Executive Service are based on rank. On this point, the Integrated Reorganization Plan cannot be any clearer. It provides:[11] c. Appointment. Appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to

45

the higher ranks which qualify the incumbents to assignments as undersecretary and heads of bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination. At the initial implementation of this Plan, an incumbent who holds a permanent appointment to a position embraced in the Career Executive Service shall continue to hold his position, but may not advance to a higher class of position in the Career Executive Service unless or until he qualifies for membership in the Career Executive Service. .... e. Assignments, Reassignments and Transfers. Depending upon their ranks, members of the Service shall be assigned to occupy positions of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Board on the basis of the members functional expertise. . . . The rules and regulations promulgated by the CES Board[12] to implement the Integrated Reorganization Plan are equally clear in providing that Career Executive Service Eligibility Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the Board through a formal Board Resolution after an evaluation of the examinees performance in the four stages of the CES eligibility examinations. .... Appointment to CES Rank Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the President upon the recommendation of the Board. This process completes the officials membership in the CES and most importantly, confers on him security of tenure in the CES. There are six (6) ranks in the CES ranking structure. The highest rank is that of a Career Executive Service Officer I (CESO I), while the lowest is that of CESO VI. The appropriate CESO rank to which a CES eligible may be appointed depends on two major qualification criteria, namely: (1) level of managerial responsibility; and, (2) performance. Performance is determined by the officials performance rating obtained in the annual CESPES. On the other hand, managerial responsibility is based on the level of the general duties and responsibilities which an eligible is performing, as follows: Levels of Duties and Rank Equivalent Responsibilities if level of managerial responsibilities I are comparable to that of an Undersecretary if comparable to that of an Assistant II Secretary if comparable to that of a Bureau III Director or a Department Regional Director if comparable to that of an Assistant IV Bureau Director, Department Assistant Regional Director or Department Service Chief if comparable to that of a Bureau V Regional Director if comparable to that of a Bureau VI Assistant Regional Director As a general rule, a CES eligible will be recommended for appointment to the rank equivalent of the level of his managerial responsibility if his performance rating is Satisfactory or higher. If the performance rating is Outstanding, he will be recommended one rank higher than his level of managerial responsibility. Security of tenure in the career executive service is thus acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions

46

to which they may be appointed a concept which is applicable only to first and second-level employees in the civil service but to the rank to which they are appointed by the President. Accordingly, respondent did not acquire security of tenure by the mere fact that she was appointed to the higher position of Chief Public Attorney since she was not subsequently appointed to the rank of CESO I based on her performance in that position as required by the rules of the CES Board. Indeed, to contend, as does the dissent of Justice Gonzaga-Reyes, that a CES eligibility was all that was required to make her appointment to the position of Chief Public Attorney permanent would give rise to an anomalous situation. Following such theory, even if respondent is not appointed CESO I because her performance as Chief Public Attorney does not warrant her appointment to such higher rank, she cannot be transferred to any other office to which her rank (CESO III) qualifies her. This theory of the dissent, i.e., that a CES eligibility gives the appointee security of tenure - not the ruling in this case that it is appointment to the appropriate rank that confers security of tenure - is what will undermine the Career Executive Service. Third. Within the Career Executive Service, personnel can be shifted from one office or position to another without violation of their right to security of tenure because their status and salaries are based on their ranks and not on their jobs. To understand this, it is necessary to consider the reason for the creation of the Career Executive Service. R.A. No. 5435,[13] as amended by R.A. Nos. 6076, 6172, and 6175, created a commission charged with the specific function of reorganizing the government to promote simplicity, economy, and efficiency in its operations. The result was the preparation of the Integrated Reorganization Plan which was adopted and declared part of the law of the land by P.D. No. 1 on September 24, 1972. A major feature of the Integrated Reorganization Plan was the creation of the Career Executive Service whose justification was explained by the Commission on Reorganization, thus: The present Civil Service system is not geared to meet the executive manpower needs of the government. The filling of higher administrative positions is often based on considerations other than merit and demonstrated competence. The area of promotion is currently confined to the person or persons next-in-rank in the agency. Moreover, personnel classification and compensation are uniformly based on concepts and procedures which are suited to positions in the lower levels but not to managerial posts in the higher levels. To fill this crucial gap, it is recommended that a Career Executive Service be established. This group of senior administrators shall be carefully selected on the basis of high qualifications and competence. Skilled in both techniques and processes of management, these career executives will act as catalysts for administrative efficiency and as agents of administrative innovation. The status and salary of the career executives will be based on their rank, and not on the job that they occupy at any given time . . . . In this sense, the rank status of the Career Executive Service is similar to that of the commissioned officers in the Armed Forces or members of the Foreign Service. Unlike these latter organizations, however, entrance to the Career Executive Service will not be generally at an early age in a relatively junior level but at a senior management level. . . . . The rank classification in the Service will allow for mobility or flexibility of assignments such that the government could utilize the services or special talents of these career executives wherever they are most needed or will likely create the greatest impact. This feature is especially relevant in a developing country which cannot afford to have its scarce executive manpower pegged to particular positions. Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies of public service, is thus the distinguishing feature of the Career Executive Service. To attain this objective, the Integrated Reorganization Plan provides:[14] e. Assignments, Reassignments and Transferees. . . . Any provision of law to the contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position to another and from one department, bureau or office to another; provided that such reassignment or transfer is made in the interest of public service and involves no reduction in rank or salary; provided, further, that no member shall be reassigned or transferred oftener than every two years; and provided, furthermore, that if the officer concerned believes that his reassignment or transfer is not justified, he may appeal his case to the President. The implementing rules and regulations of the CES Board provide: Salary of Career Executive Service Officers. A CESO is compensated according to his CES rank and not on the basis of the CES position he occupies. However, if a CESO is assigned to a CES position with a higher salary grade than that of his CES rank, he is allowed to receive the salary of the CES position. Should he be assigned or made to occupy a CES position with a lower salary grade, he shall continue to be paid the salary attached to his CES rank.[15] Petitioners are, therefore, right in arguing that respondent, as a CESO, can be reassigned from one CES

47

position to another and from one department, bureau or office to another. Further, respondent, as a CESO, can even be assigned or made to occupy a CES position with a lower salary grade. In the instant case, respondent, who holds a CES Rank III, was correctly and properly appointed by the appointing authority to the position of Regional Director, a position which has a corresponding CES Rank Level III.[16] Indeed, even in the other branches of the civil service, the rule is that, unless an employee is appointed to a particular office or station, he can claim no security of tenure in respect of any office. This rule has been applied to such appointments as Director III or Director IV or Attorney IV or V in the Civil Service Commission since the appointments are not to specified offices but to particular ranks;[17] Election Registrars;[18] Election Officers, also in the Commission on Elections;[19] and Revenue District Officers in the Bureau of Internal Revenue.[20] Reiterating the principle in Sta. Maria v. Lopez,[21] this Court said: . . . [T]he rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed - not merely assigned - to a particular station. Such a rule does not proscribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. The use of approved techniques or methods in personnel management to harness the abilities of employees to promote optimum public service cannot be objected to. . . . For the foregoing reasons, we hold that respondents appointment to the position of Chief Public Attorney was merely temporary and that, consequently, her subsequent transfer to the position of Regional Director of the same office, which corresponds to her CESO rank, cannot be considered a demotion, much less a violation of the security of tenure guarantee of the Constitution. Fourth. On the other hand, Justice Puno makes much of the fact that petitioner Carina J. Demaisip is not a CES eligible. Suffice it to say the law allows in exceptional cases the appointment of non-CES eligibles provided that the appointees subsequently pass the CES Examinations. Thus Part III, Chap. I, Art. IV, par. 5(c) of the Integrated Reorganization Plan provides that the President may, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualified in such examination. For the same reason that the temporary appointment of respondent Josefina G. Bacal as Chief Public Attorney is valid under this provision of the law despite the fact that she does not hold the rank of CESO I, so is the appointment to the same position of petitioner Carina J. Demaisip. The question in this case is not the validity of the appointment to such position but whether the appointee acquires security of tenure even if he does not possess the requisite rank. There is no claim that petitioner Demaisip has a right to remain in the position of Chief Public Attorney permanently. On the other hand, as respondent herself does not have the requisite qualification for the position of Chief Public Attorney, she cannot raise the lack of qualification of petitioner. As held in Carillo v. Court of Appeals,[22] in a quo warranto proceeding the person suing must show that he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial.[23] Indeed, this has been the exacting rule[24] since it was first announced, 95 years ago, in Acosta v. Flor.[25] As at present embodied in Rule 66, 5 of the Rules of Civil Procedure, the rule is that a person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name. WHEREFORE, the decision of the Court of Appeals is REVERSED and the petition for quo warranto filed by respondent is DISMISSED. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Pardo, Buena, Ynares-Santiago and De Leon, Jr., JJ., concur. Puno J., see separate opinion. Vitug J., join Justice Puno in his separate opinion. Panganiban and Quisumbing, JJ., join the dissent of J. Reyes. Gonzaga-Reyes J., see dissenting opinion.

SALVADOR SEBASTIAN, SR., petitioner, vs. HON. FRANCIS E. GARCHITORENA, HON. JOSE S. BALAJADIA, and HON. NARCISO T. ATIENZA (SANDIGANBAYAN-First Division), respondents. DECISION DE LEON, JR., J.: Before us is a petition for certiorari under Rule 65[1] in conjunction with Rule XIX of the Revised Rules of the Sandiganbayan, seeking to annul the Resolution[2] dated August 24, 1993 of the Sandiganbayan, First Division which admitted the sworn statements of petitioner Salvador Sebastian, Sr. and his co-accused in Criminal Case No. 17904 as evidence for the prosecution, and the Resolution dated September 27, 1993 which

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denied the motion for reconsideration of the said Resolution. On July 28, 1992, Special Prosecution Officer III Teresita Diaz-Baldoz filed with the Sandiganbayan an Information for the crime of Malversation of Public Funds[3], as defined and penalized under Article 217 of the Revised Penal Code, against Rosita C. Pada, Teresita B. Rodriquez, Rachel V. Torres, Lourdes A. Enriquez and Salvador C. Sebastian. It reads: That on or about the period comprised between January 1989 and June 21, 1990, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public officers, ROSITA C. PADA, being then the Regional Postage Stamps Custodian, and as such is accountable for the custody of the postage stamps received and issued by her by reason of the duties of her office, TERESITA B. RODRIGUEZ, being then the Senior Clerk in the Postage Stamps Section, RACHEL V. TORRES, being then a Utility Man in the Postage Stamps Section, LOURDES A. ENRIQUEZ, being then a Senior Clerk in the Mail Delivery Section and SALVADOR C. SEBASTIAN, being then a Letter Carrier, all of the Postal Services Office, Region IX, Zamboanga City, while in the performance of their official functions, taking advantage of their position, committing the offense in relation to their office, and conspiring and confederating with one another, did then and there wilfully, unlawfully, feloniously and with grave abuse of confidence, misappropriate, misapply, and embezzle and convert to their personal use and benefit the amount of SIX HUNDRED FORTY NINE THOUSAND TWO HUNDRED NINETY and 05/100 PESOS (P649,290.05), Philippine Currency, out of the postage stamps in the custody of accused Rosita C. Pada, to the damage and prejudice of the Government in the aforesaid sum. Contrary to law. Rosita C. Pada, Rachel V. Torres, and Salvador C. Sebastian entered separate pleas of "Not Guilty" on October 13, 1992.[4] On April 22, 1993, the marking of the documents to be testified on by the lone prosecution witness, Auditor Lilibeth Rugayan of the Commission on Audit, who conducted the audit examination, took place before the Deputy Clerk of Court of the First Division of the Sandiganbayan. The marking of the exhibits was with the conformity of all of the accused and their respective counsel. Upon the completion of the testimony of Auditor Rugayan, the prosecution rested its case[5]and formally offered its evidence on July 6, 1993.[6] Among those offered as evidence were the sworn statements made by all the accused, including that of petitioner, and previously marked as exhibits "Q", "R", "S", "T", "U", and "U-1" for the prosecution. Said exhibits were offered as part of the testimony of Auditor Rugayan. On August 19, 1993, all the accused (including petitioner) filed their "Joint Objections to Formal Offer of Evidence" on the principal ground that the sworn statements were "hearsay" evidence.[7] The Sandiganbayan in its Minute Resolution[8] dated August 24, 1993, admitted said evidence, thus: Acting upon the "FORMAL OFFER OF EVIDENCE" dated July 5, 1993, of the Prosecution and considering the "JOINT OBJECTIONS TO FORMAL OFFER OF EVIDENCE" dated August 19, 1993, of accused, the Court RESOLVES the same as follows: Exhibits A, B, and C are admitted, they being certified true copies of official documents; Exhibits D up to U and U-1 inclusive of submarkings are admitted as part of the testimony of Lilibeth Rugayan as examining auditor under the State Auditing Code (P.D. No. 1445). Dissatisfied, the three accused, on September 13, 1993, jointly filed a Motion for Reconsideration, but the same was denied by the respondent court in its Resolution[9] dated September 27, 1993. It ruled that: Considering that under the Order of this Court dated April 22, 1993 (p. 85) the exhibits "off-court" was admitted by the accused through counsel, among which were exhibits "A", "B" and "C", the Motion for Reconsideration filed by the accused Pada, Torres and Sebastian with regard to the admission of said exhibits dated September 10, 1993 is denied. Hence, this petition. The only issue to be resolved in the present petition is whether or not the sworn statements of petitioner and his co-accused are admissible in evidence "as part of the testimony of the prosecution witness". Petitioner argues that the said issue should be resolved in the negative on the ground that the subject sworn statements are hearsay evidence. Petitioner contends that he and his co-accused were never presented as witnesses, thus, they were not given the opportunity to identify and authenticate their respective sworn statements and that Auditor Rugayan had no personal knowledge of the contents thereof. We disagree. As a general rule, hearsay evidence is inadmissible. Thus, the rule explicitly provides that a witness can testify only on those facts which he knows of his personal knowledge, that is, which are derived from his own perceptions.[10] However, while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement.[11]

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In the present case, the sworn statements executed by the petitioner and co-accused were offered not to prove the truth or falsity of the facts stated therein but only to prove that such written statements were actually made and executed. As stated in the Resolution dated August 24, 1993 of the respondent court, Exhibits "D" up to "U" and "U-1" were admitted only as part of the testimony of Lilibeth Rugayan as Examining Auditor. Title II, Chapter I, Section 55 of P.D. 1445, otherwise known as the Government Auditing Code provides that "the auditor shall obtain through inspections, observation, inquiries, confirmation and other techniques, sufficient competent evidential matter to afford himself a reasonable basis for his opinions, judgments, conclusions and recommendations". It is also the contention of petitioner that he never admitted the said sworn statements during the pre-trial conference; that he agreed merely to the "marking" of the said sworn statements as exhibits of the prosecution; and that "marking" is different from "admission". The main purpose of a pre-trial is to expedite the trial. Thus, the respondent court in its Order dated April 22, 1993 ruled that: By agreement of the parties, the sub-marking of the documents to be testified to by Auditor Lilibeth Rugayan has been completed and only the other sub-markings will take place during the proceedings. Additionally, the parties have informally agreed that all the documents marked today are deemed authenticated except for the alleged responses of the various postmasters as to the request for confirmation which the accused dispute both as to their authenticity as well as to their accuracy assuming that they are authentic. In view of this, subject to confirmation this afternoon, the direct examination will be waived and the cross-examination by the accused will take place primarily to dispute the statement above-mentioned. This Order of the Sandiganbayan reciting the actions taken, the facts stipulated, and evidence marked, binds the parties and limits the trial to matters not disposed of and shall control the course of the action during the trial, unless modified by the court to prevent manifest injustice.[12] The record does not show that petitioner and his co-accused objected to the above-mentioned Order. In any event, any evidence presented during the pre-trial conference cannot be considered by the court if not formally offered. It has been held that any evidence which a party desiring to submit for the consideration of the court must be formally offered by him.[13] Such a formal offer is necessary because it is the duty of the judge to rest his findings of facts and his judgment only upon the evidence offered by the parties at the trial. Petitioner in his supplemental pleading claims to have been deprived of his constitutional rights under Sections 12 and 17, Article III of the 1987 Constitution. Petitioner alleges that nothing in his sworn statement shows compliance with the constitutional provisions on the right to counsel, the right to remain silent and the right to waive these rights in the presence of counsel. Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be invoked only when a person is under "custodial investigation" or is "in custody investigation." Custodial investigation has been defined as any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.[14] The fact-finding investigation relative to the missing postage stamps at the Postage Stock Section of Zamboanga City conducted by a Enrique G. Saavedra, Chief Postal Service Officer, is not a custodial investigation. It is merely an administrative investigation. While an investigation conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such a body to furnish the person being investigated with counsel.[15] It has been held in the case of Lumiqued v. Exevea[16] that the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. Petitioner, likewise contends that the Ombudsman acted with grave abuse of discretion in filing the Information for malversation against him. He argues that in its first Resolution dated March 18, 1992 of the Office of the Ombudsman, Graft Investigation Officer Rodolfo Rojas, Jr. recommended the filing of an Information for Malversation of Public Funds against Rosita C. Pada only. However, in its subsequent resolution dated July 28, 1992, Special Prosecution Officer Teresita Daiz-Baldos recommended the prosecution of the four other accused, including petitioner, stating that: Thus, for purposes of prosecution, it would be more expedient to indict all the respondents for Malversation and let them explain in court the actual extent of their individual accountability. x x x x x x WHEREFORE, premises considered, the undersigned respectfully recommends the prosecution of Rosita Pada, Teresita Rodriguez, Rachel Torres, Lourdes Enriquez and Salvador Sebastian, for Malversation of Public Funds, and the exclusion for liability of Florecita Doromal." Hence, petitioner now questions the disposition of the Ombudsman as merely engaging in a fishing expedition in this case.

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This Court has consistently refrained from interfering with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory power. Otherwise stated, it is not for this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before his Office. Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service.[17] Lastly, the Court noted that the petition, as described therein, is one filed under Rule 45 of the Rules of Court. However, under Rule 45, a petition for review on certiorari is a mode of appeal from judgments or final orders or resolutions and limited to questions of law. Petitioner's choice of remedy therefore is clearly an error. The resolutions of the Sandiganbayan herein sought to be reviewed or set aside are not in any sense judgments or final orders or resolutions; they are interlocutory in nature and from which no appeal lies. WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of Education, Culture, and Sports, petitioner, vs. COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and NICANOR MARGALLO, respondents. DECISION MENDOZA, J.: This case arose out of the unfortunate strikes and walk-outs staged by public school teachers on different dates in September and October 1990. The illegality of the strikes was declared in our 1991 decision in Manila Public School Teachers Association v. Laguio, Jr.,[1] but many incidents of those strikes are still to be resolved. At issue in this case is the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although reprimanded for being absent without leave. The facts are as follows: Private respondents are public school teachers. On various dates in September and October 1990, during the teachers strikes, they did not report for work. For this reason, they were administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable office regulations, (4) refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and placed under preventive suspension. The investigation was concluded before the lapse of their 90-day suspension and private respondents were found guilty as charged. Respondent Nicanor Margallo was ordered dismissed from the service effective October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang were ordered suspended for six months effective December 4, 1990.[2] Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which found him guilty of conduct prejudicial to the best interest of the service and imposed on him a six-month suspension.[3] The other respondents also appealed to the MSPB, but their appeal was dismissed because of their failure to file their appeal memorandum on time.[4] On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang) guilty only of violation of reasonable office rules and regulations by failing to file applications for leave of absence and, therefore, reduced the penalty imposed on them to reprimand and ordered them reinstated to their former positions. Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to Revised Administrative Circular No. 1-95, the case was referred to the Court of Appeals which, on September 3, 1996, rendered a decision (1) affirming the decision of the CSC with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate court found him guilty of violation of reasonable office rules and regulations only and imposed on him the penalty of reprimand.[5] Private respondents moved for a reconsideration, contending that they should be exonerated of all charges against them and that they be paid salaries during their suspension. In its resolution, dated July 15, 1997, the Court of Appeals, while maintaining its finding that private respondents were guilty of violation of reasonable office rules and regulations for which they should be reprimanded, ruled that private respondents were entitled to the payment of salaries during their suspension beyond ninety (90) days. Accordingly, the appellate court amended the dispositive portion of its decision to read as follows: WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution Nos. 93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution Nos. 93-2304

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dated June 24, 1993 and 93-3227 dated August 17, 1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125 dated August 10, 1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while CSC Resolution Nos. 93-2211 dated June 21, 1993 are hereby MODIFIED finding petitioner Nicanor Margallo guilty of a lesser offense of violation of reasonable office rules and regulations and meting upon him the penalty of reprimand. Respondent DECS is ordered to pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and Nicanor Margallo their salaries, allowances and other benefits during the period of their suspension/dismissal beyond the ninety (90) day preventive suspension. No pronouncement as to costs.[6] Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a reconsideration insofar as the resolution of the Court of Appeals ordered the payment of private respondents salaries during the period of their appeal.[7] His motion was, however, denied by the appellate court in its resolution of October 6, 1997.[8] Hence, this petition for review on certiorari. Petitioner contends that the administrative investigation of respondents was concluded within the 90-day period of preventive suspension, implying that the continued suspension of private respondents is due to their appeal, hence, the government should not be held answerable for payment of their salaries. Moreover, petitioner lays so much store by the fact that, under the law, private respondents are considered under preventive suspension during the period of their appeal and, for this reason, are not entitled to the payment of their salaries during their suspension.[9] Petitioners contentions have no merit. I. Preventive Suspension and the Right to Compensation in Case of Exoneration The present Civil Service Law is found in Book V, Title I, Subtitle A of the Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions in this case, the law provides: SEC. 47. Disciplinary Jurisdiction. .... (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. .... (4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. There are thus two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (47(4)). Preventive suspension pending investigation is not a penalty.[10] It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals ordered the DECS to pay private respondents their salaries, allowances, and other benefits beyond the ninety (90) day preventive suspension. In other words, no compensation was due for the period of the preventive suspension pending investigation but only for the period of preventive suspension pending appeal in

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the event the employee is exonerated. The separate opinion of Justice Panganiban argues that the employee concerned should be paid his salaries after his suspension. The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. Sec. 35 read: Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of suspension of the respondent, the respondent shall be reinstated in the service. If the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension.[11] However, the law was revised in 1975 and the provision on the payment of salaries during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read: Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension shall be without pay. Sec. 24 reads: Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. This conclusion is in accord with the rule of statutory construction that As a rule, the amendment by deletion of certain words or phrases in a statute indicates that the legislature intended to change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the intention been not in effect a change in its meaning. The amended statute should accordingly be given a construction different from that previous to its amendment.[12] The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to deny payment of salaries for the preventive suspension pending investigation. First, it says that to deny compensation for the period of preventive suspension would be to reverse the course of decisions ordering the payment of salaries for such period. However, the cases[13] cited are based either on the former rule which expressly provided that if the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension[14] or that upon subsequent reinstatement of the suspended person or upon his exoneration, if death should render reinstatement impossible, any salary so withheld shall be paid,[15] or on cases which do not really support the proposition advanced. Second, it is contended that the exoneration of employees who have been preventively suspended is proof that there was no reason at all to suspend them and thus makes their preventive suspension a penalty. The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechems A Treatise on the Law of Public Offices and Officers as follows: 864. Officer not entitled to Salary during Suspension from Office. - An officer who has been lawfully suspended from his office is not entitled to compensation for the period during which he was so suspended, even though it be subsequently determined that the cause for which he was suspended was insufficient. The reason given is that salary and perquisites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services.[16] Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified.[17] The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered

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unjustified, even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the law provides that the employee shall be automatically reinstated. Third, it is argued in the separate opinion that to deny employees salaries on the frivolous ground that the law does not provide for their payment would be to provide a tool for the oppression of civil servants who, though innocent, may be falsely charged of grave or less grave administrative offenses. Indeed, the possibility of abuse is not an argument against the recognition of the existence of power. As Justice Story aptly put it, It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. . . . [For] from the very nature of things, the absolute right of decision, in the last resort, must rest somewhere wherever it may be vested it is susceptible of abuse.[18] It may be added that if and when such abuse occurs, that would be the time for the courts to exercise their nay-saying function. Until then, however, the public interest in an upright civil service must be upheld. Finally, it is argued that even in the private sector, the law provides that employees who are unjustly dismissed are entitled to reinstatement with full pay. But that is because R.A. No. 6715 expressly provides for the payment to such employees of full backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.[19] In the case of the public sector, as has been noted, the provision for payment of salaries during the preventive suspension pending investigation has been deleted. B. Right to Compensation for Preventive Suspension Pending Appeal if Employee is Exonerated But although we hold that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to sustain the governments theory would be to make the administrative decision not only executory but final and executory. The fact is that 47(2) and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages as equity and justice may require. Sec. 47 of the present law providing that an administrative decision meting out the penalty of suspension or dismissal shall be immediately executory and that if the respondent appeals he shall be considered as being merely under preventive suspension if eventually he prevails is taken from 37 of the Civil Service Decree of 1975 (P.D. No. 807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the Commissioner of Civil Service could order the immediate execution of an administrative decision in the interest of the public service.[20] Nor was there provision for immediate execution of administrative decisions ordering dismissal or suspension in 695 of the Administrative Code of 1917, as amended by C.A. No. 598, 1.[21] Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in cases in which employees were found to be innocent of the charges[22] or their suspension was held to be unjustified, because the penalty of suspension or dismissal was executed without a finding by the Civil Service Commissioner that it was necessary in the interest of the public service.[23] On the other hand, payment of back salaries was denied where it was shown that the employee concerned was guilty as charged and the immediate execution of the decision was ordered by the Civil Service Commissioner in the interest of the public service.[24] Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his suspension, being authorized by law, cannot be unjustified. To be entitled to such compensation, the employee must not only be found innocent of the charges but his suspension must likewise be unjustified. But though an employee is considered under preventive suspension during the pendency of his

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appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal. Hence, the employee concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before the suspension was imposed.[25] II. Private Respondents Entitled to Back Salaries Although Found Guilty of Violation of Office Rules and Regulations and Reprimanded Private respondents were exonerated of all charges against them for acts connected with the teachers strike of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated: With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service. However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the mass actions but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither did he file an application for leave covering such absences. Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service.[26] In Jacinto v. Court of Appeals,[27] a public school teacher who was found guilty of violation of reasonable office rules and regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of the charge of having taken part in the strikes. Petitioner Secretary of Education contends, however, that respondents Abad, Bandigas, and Somebang signed a letter in which they admitted having taken part in the mass action. This question cannot be raised now. The Civil Service Commission gave no weight to this letter in view of individual letters written by the three citing reasons for their absences, to wit: Abad, because she decided to stay home to correct student papers; Bandigas, because she had to accompany her brother to the Commission on Immigration, and Somebang because of economic reasons. Petitioner did not appeal from this ruling. Hence, he is bound by the factual findings of the CSC and the appellate court. WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby AFFIRMED with the MODIFICATION that the award of salaries to private respondents shall be computed from the time of their dismissal/suspension by the Department of Education, Culture, and Sports until their actual reinstatement, for a period not exceeding five years. SO ORDERED. Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima, and Gonzaga-Reyes, JJ., concur. Davide, C.J., concurs in the result and subject to the modification expressed in the separate opinion of Justice Panganiban. Panganiban, J., please see separate opinion. Puno, Pardo, Buena, and Ynares-Santiago, join Justice Panganiban's separate opinion. Melo, J., in the result.

ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO

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LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. G.R. No. 126366 December 15, 1999 ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents. YNARES-SANTIAGO, J.: 1 Before this Court are three, consolidated petitions filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed. 2 During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972. On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. 3 Tuvera the presidential decree is deemed never "in force or effect and therefore cannot at present, be a 4 basis for establishment of the CSUs . . . ." On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety ("DPOS"). At the heart of these petitions is Section 3 of the Ordinance which provides: Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Emphasis ours). Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew. We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly. G.R. No. 124374 and G.R. No. 126366 After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City 5 Ordinance No. NC-140, Series of 1990, and ordering their reinstatement to their former positions in the 6 7 DPOS. Petitioner brought petitions for certiorari to this Court, to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of

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1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to 8 local governments." We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief 9 executive. The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. 10 The power to appoint is not one of them. Expressio inius est exclusio alterius. Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be 11 done. In a long line of cases, we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. The Ordinance refers to the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for 12 the exercise of discretion. In Farinas vs. Barba, we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is a discretionary power. When the Civil Service Commission ordered the reinstatement of private respondents, it technically 13 issued a new appointment. This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a discretionary power 14 and must be performed by the officer in which it is vested." The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr., to reinstate private respondents. Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. In its decision of March 21, 1996 the Court of Appeals held: It is clear however, that Ordinance No. NC-140, absorbing the "present personnel of the Civil Security Agent Unit" in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of de jure appointments as permanent regular employees at the time, and therefore, by operation of said Ordinance private respondents were automatically absorbed in the DPOS effectively as 15 of March 27, 1990. (Emphasis ours.) The decision is based on the wrong premise. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held 16 permanent positions. Accordingly, as petitioner correctly points out, the private respondents' appointments in the defunct CSU

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were invalid ab initio. Their seniority and permanent status did not arise since they have no valid appointment. For then to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil Service Commission. Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Emphasis ours). It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a 17 law expressly or impliedly creating and conferring it. Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. 18 In Debulgado vs. Civil Service Commission we held that "a void appointment cannot give rise to security of tenure on the part of the holder of the appointment." While the Court of Appeals was correct when it stated that "the abolition of an office does not mean the 19 invalidity of appointments thereto," this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The non-renewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service 20 Commission we treated temporary appointments as follows: The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Emphasis ours.) Another argument against the concept of automatic absorption is the physical and legal impossibility 21 given the number of available positions in the DPOS and the number of personnel to be absorbed. We note that Section 1 of Ordinance NC-140 provides: There is hereby established in the Quezon City Government the Department of Public Order and Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance. A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or "renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354 In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that "every action must be prosecuted or defended in the name of the real party in 22 interest." A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In Ralla vs. Ralla we defined interest as "material interest, an interest in issue and to be affected by the 23 decree, as distinguished from mere interest in the question involved, or mere incidental interest." As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action. In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement. We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy 24 25 which overturned our rulings in Paredes vs. Civil Service Commission Mendez vs. Civil Service

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Commission and Magpale vs. Civil Service Commission. In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be over emphasized. The subject of the present case, on the other hand, is "reinstatement." We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply. To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judical body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where 28 his decision is appealed to a higher court for review." In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated functions is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review 29 decisions and actions of its offices and agencies," not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354. WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE. The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED. No costs. SO ORDERED.

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MA. AMELITA C. VILLAROSA, petitioner, vs. COMMISSION ON ELECTIONS, and ATTY. DAN RESTOR, respondents. RICARDO QUINTOS, necessary respondent. DECISION _ GONZAGA REYES, J.: For the Courts resolution is the instant petition for certiorari and prohibition assailing Resolution dated May 11, 1998 of the Commission on Elections (hereafter, COMELEC or the Commission)[1] on Election Matter No. 98-044, disallowing the use by petitioner of the nickname JTV for the purpose of her candidacy in the May 11, 1998 elections, and the COMELEC Resolution, dated May 13, 1998,[2] denying reconsideration of the earlier Resolution. Petitioner was a candidate for Representative of the lone district of Occidental Mindoro in the May 11, 1998 elections and was proclaimed duly elected thereto on May 27, 1998. On March 27, 1998, she filed her certificate of candidacy in which she stated, among others, that her nickname is JTV. On April 20, 1998, private respondent Restor filed a letter-petition[3] addressed to COMELEC Chairman Bernardo Pardo through Atty. Jose Balbuena, Director of the COMELEC Law Department, asking for the invalidation or cancellation of JTV as the official nickname of petitioner as declared in her certificate of candidacy, and the nullification of all votes cast in the said nickname, on the ground that petitioner is not publicly known by that name. The letterpetition further averred that petitioner is publicly known in Occidental Mindoro as Girlie and that the appellation JTV actually pertains to the initials of her husband and former Congressman of Occidental Mindoro, Jose Tapales Villarosa. On election day, May 11, 1998, the Commission, sitting en banc, issued a Resolution granting private respondent Restors letter-petition on the ground that the nickname JTV is not one by which petitioner is popularly known.[4] Petitioner received a fax copy of this Resolution at 5:32 in the afternoon of May 11, 1998, at which time voting has ceased and canvassing of votes in some precincts has already gone underway. On May 12, 1998, petitioner filed with the Commission an Urgent Manifestation and Motion to reconsider the aforesaid Resolution. Finding that no new matter has been raised therein, the Commission en banc issued another Resolution the next day, May 13, 1998, denying the above motion. Thus, this petition raises the question of whether the Commission gravely abused its discretion in: (1) ruling on private respondent Restors letter-petition without according notice and hearing to petitioner; (2) taking cognizance of the letter-petition which was not filed by a real party in interest; (3) resolving the letter-petition en

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banc, instead of first referring it to one of its Divisions; and finally, (4) disallowing petitioners use of the nickname JTV and ordering the election officers of Occidental Mindoro to consider invalid all votes cast in that appellation. The petition also impleads as a necessary respondent Ricardo Quintos, who ran opposite petitioner for the lone congressional post of Occidental Mindoro in the May 11, 1998 elections, in view of confirmed reports that he will file an election protest before the House of Representatives Electoral Tribunal (HRET) invoking the questioned resolutions. Private respondents validated this allegation when they declared that private respondent Quintos has in fact filed such an election protest case, docketed as HRET Case No. 98-030.[5] In its Manifestation In Lieu of Comment, the Office of the Solicitor General observed that even if the letterpetition was treated as an election matter which may be properly heard firsthand by the Commission en banc, the Commission should have given notice to petitioner before resolving the issue therein, especially since the petitioner stands to be adversely affected should the petition be granted. On the issue of the validity of the use of JTV as petitioners nickname, it opined that petitioner may validly use the same as she is in fact Mrs. Jose Tapales Villarosa, and hence, there is no misrepresentation. Moreover, no one among the other candidates had the same initials as to be prejudiced by her use of the same. The petition is impressed with merit. It stands uncontested that petitioner came to know of the letter-petition lodged against her by private respondent Restor only upon receipt of a copy of the COMELEC Resolution issued on May 11, 1998, which she received by fax at 5:32 in the afternoon of the same day. Under these circumstances, it is clear that the Commission passed upon the letter-petition without affording petitioner the opportunity to explain her side and to counter the allegations of private respondent Restors letter-petition. Due process dictates that before any decision can be validly rendered in a case, the twin requirements of notice and hearing must be observed.[6] Evidently, the conclusion of the Commission in the assailed Resolution dated May 11, 1998, that JTV is not a nickname by which petitioner is generally or popularly known, was drawn purely from the allegations of the letterpetition and for this reason, the Commission acted in excess of its jurisdiction. Interminably, we have declared that deprivation of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration.[7] However, we find the foregoing rule inapplicable to the circumstances of the case at bench. As earlier narrated, petitioner filed an Urgent Manifestation and Motion with the Commission on May 12, 1998, which the Commission promptly denied the following day. By its own designation, the two-page pleading filed by petitioner is one part manifestation and one part motion. On the main, it enters appearance of petitioner, who was not impleaded in private respondent Restors letter-petition, and communicates receipt of the May 11, 1998 Resolution. Even as it seeks reconsideration of the said resolution by invoking due process, it does not purport to embody petitioners grounds and arguments for reconsideration. Rather, it states that (petitioner) reserve(s) all rights and waive(s) none, including filing a supplemental motion for reconsideration, pending retaining additional counsel as the lawyer representing petitioner at the time was saddled with other commitments.[8] In filing this Urgent Manifestation and Motion on the second day of canvassing of votes, and immediately after receipt of the contested resolution, it is obvious that petitioners immediate concern for doing so was not mainly to exercise her right to be heard, but to have the Commission seasonably reconsider the May 11, 1998 Resolution while canvassing was still at the precinct or municipal level. While the filing of a supplemental motion for reconsideration is not a matter of right, it is believed that the judicious thing for the Commission to have done, considering the obvious due process issues brought about by the May 11, 1998 Resolution, was to afford petitioner a chance to explain why she should be allowed to use the nickname JTV, such as by requiring her to submit a supplemental motion for reconsideration. We consider this more in consonance with our rulings in Salonga and Rodriguez on opportunity to be heard on reconsideration. Thus, we find that respondent COMELEC acted imprudently and in excess of its jurisdiction in treating the Urgent Manifestation and Motion as petitioners motion for reconsideration of the May 11, 1998 Resolution, and in summarily dismissing the same. Anent the second issue, petitioner contends that the Commission gravely abused its discretion when it took cognizance of the petition below, there being no showing that it was filed in the name of a real party in interest. The argument is tenable. The COMELEC Rules of Procedure require that all actions filed with the Commission be prosecuted and defended in the name of the real party in interest.[9] The letter-petition does not allege that the protestant, herein private respondent Restor, is a candidate for any position in the May 11, 1998 elections, or a representative of a registered political party or coalition, or at the very least, a registered voter in the lone district of Occidental Mindoro --- as to stand to sustain any form of injury by petitioners use of the nickname JTV. Absent such essential allegation, the letter-petition stood defective and should have been dismissed outright for failure to state a cause of action. The question of whether the Commission may decide cases en banc without first referring them to any of

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its divisions has been consistently answered in the negative since Sarmiento vs. COMELEC[10], which interpreted Section 3, Article IX(C) of the Constitution[11] as requiring all election cases to be first heard and decided by a division of the Commission, before being brought to the Commission en banc on reconsideration. Conformably, we hold that the Commission exceeded the bounds of its jurisdiction when it took cognizance of private respondent Restors letter-petition at the first instance, thus rendering its May 11, 1998 Resolution void. To the above rule, private respondents take exception by stating that the subject letter-petition posed issues which were administrative in character, and, thus, not subject to the requirement of referral to division which applies only in the Commissions exercise of its adjudicatory or quasi-judicial functions. In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that (t)he term administrative connotes, or pertains, to administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things. It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon. While a quasi-judicial function is a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature.[12] Thus, in Vigan Electric Light Co., Inc. vs. Public Service Commission, 10 SCRA 46,[13] we held that where the fixing of power rates, which are to apply exclusively to a particular party, is based upon a report of the General Auditing Office, and which fact is denied by the affected party, the making of such finding of fact by respondent administrative agency is a function partaking of a quasi-judicial character. A directive by the Commission to disallow petitioners use of the nickname JTV for purposes of her candidacy, on the basis of Resolution No. 2977[14], clearly necessitates a determination of whether petitioner is in fact not generally or popularly known as such in the locality of Occidental Mindoro. Indubitably, since it involved the application of law or rules to an ascertained set of facts, it called for the Commissions exercise of its adjudicatory powers and falls within the concept of an election contest in the sense contemplated by Section 3, Article IX(C) of the Constitution. We cannot agree with the view advanced by private respondents that because the petition below cannot be classified as a case falling under Rules 20 to 33 of the COMELEC Rules of Procedure[15], it is not a quasijudicial matter and may thus be dealt with firsthand by the Commission en banc. Private respondent Restors letter-petition clearly asks, not only for the invalidation of JTV as petitioners authorized nickname, but also the nullification of all votes cast in that name.[16] We are hard put to treat the issue as administrative when petitioner stands to be so adversely affected by the relief asked for. That the petition below was in the form of a letter does not make the issues posed therein less substantial. As opined by the Office of the Solicitor General in its Manifestation in Lieu of Comment, (t)o sustain the ruling of the COMELEC is to open venues for commission of fraud, as one simply needs to write a letter to the COMELEC asking that votes for a candidate be nullified on the ground that the nickname used is inappropriate or not valid. The remaining issue pertains to the validity of votes cast in the name JTV. In view of the fact that the election protest of private respondent Quintos is presently pending in the House of Representatives Electoral Tribunal, we resolve to leave this matter to the resolution of the said body as the sole judge of all contests respecting the election, returns and qualifications of its members.[17] WHEREFORE, the petition is GRANTED and the COMELEC Resolutions dated May 11, 1998 and May 13, 1998, respectively, are hereby REVERSED and SET ASIDE. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur. Pardo, J., no part; was Comelec Chairman in the case below.

CARLOS A. GOTHONG LINES, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, AND ADOLFO LAURON, respondents. DECISION QUISUMBING, J.: This special civil action for certiorari seeks to annul the Decision[1] of the National Labor Relations Commission, Fourth Division, Cebu City, dated August 7, 1990, which affirmed with modification the judgment of the Labor Arbiter; and the Resolution[2] dated November 29, 1990, which denied petitioners motion for

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reconsideration. Immediately prior to the controversy, private respondent, Adolfo Lauron, was employed as a watchman with a monthly salary of P1,600, on board M/V Don Benjamin owned by petitioner Carlos A. Gothong Lines, Inc. On April 4, 1987, while the vessel was cruising the waters of Cebu and Cagayan, a fire occurred in the cabin of private respondent, burning his pillow and his blanket. The Chief Engineers cabin was also set on fire. On April 6, 1987, private respondent was ordered to disembark for purposes of the investigation to be conducted in connection with the incident. There was no investigation held until the middle of May, 1987. Thereafter, private respondent was informed that he had been dismissed from his employment. Consequently, on May 28, 1987, private respondent filed an illegal dismissal case with the Department of Labor and Employment, Regional Arbitration, Branch VII, Cebu City. Private respondent filed an amended complaint to include reinstatement with backwages, damages, attorney's fees, and other incidental pay (overtime, proportional 13th month pay). On May 2, 1989, Labor Arbiter Alhambra Llenos-Alfafara rendered a decision,[3] the dispositive portion of which states: Wherefore premises considered, judgment is hereby rendered ordering respondent to pay herein complainant the sum of Forty Five Thousand Nine Hundred Forty One Pesos and Thirty One Centavos (P45,941.31) corresponding to his backwages covering the period April 7, 1987 to May 15, 1989 at the rate of P1,600.00, his 13th month pay for the same period in the sum of P4,047.87, and the amount of P20,490.00 corresponding to his separation pay for the period 1962 to May 15, 1989, all in the total sum of P71,024.18. All other claims are hereby denied for lack of legal and/or factual basis. SO ORDERED.[4] Petitioner appealed to the National Labor Relations Commission (NLRC) which modified the decision of the Labor Arbiter, the dispositive portion of which reads: WHEREFORE, the decision of the Labor Arbiter is hereby modified as follows: Respondent is hereby ordered to pay complainant his backwages from date of dismissal on April 4, 1987 up to finality of judgment but limited to three (3) years, and in lieu of reinstatement, separation pay equivalent to one-month pay for every year of service computed from 1962 up to April 4, 1987 less the amount of P5,430.00 as indicated above. All other aspect of the decision is hereby AFFIRMED. SO ORDERED[5] Petitioner filed a motion for reconsideration of the NLRC decision, which was denied for lack of merit. Hence, this petition. Petitioner advanced the following assignment of errors committed by the public respondent NLRC: I. ERROR WAS COMMITTED IN DETERMINING THAT NO INVESTIGATION WAS CONDUCTED AND THAT HE [ADOLFO LAURON] WAS DENIED DUE PROCESS. II. ERROR WAS COMMITTED IN GRANTING FULL BACKWAGES AS WELL AS IN COMPUTING THE SAME, ASSUMING THAT PETITIONER IS LIABLE. The basic issue to be considered in this petition is whether or not the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction in affirming the decision of the Labor Arbiter that private respondent was illegally dismissed. Secondarily, we must also resolve whether or not the NLRC erred in granting the monetary awards to private respondent. Petitioner states that as a common carrier, it is bound to carry the passengers and cargoes safely as far as human care and foresight can provide, using the utmost diligence of a very cautious person with due regard for all circumstances. Consequently, when a fire occurred, it is bound to conduct a fact-finding investigation to elicit the truth behind the incident. Hence, the private respondents refusal to submit to such investigation is a willful defiance of an order of the employer, which is a sufficient cause for dismissal governed by Article 282 (a)[6] of the Labor Code. On the other hand, private respondent alleges that as a result of the fire, he was ordered to disembark on the pretext that he would be investigated. However, no investigation was ever conducted, so that private respondent was forced to approach the personnel manager and the house counsel, only to be told that it was already the desire of management to dismiss him from work. After considering the evidence of the parties, the Labor Arbiter gave more credence to the version of the private respondent over that of petitioner. In view of the Labor Arbiters findings, the NLRC ruled on appeal that the dismissal of the private respondent was indeed effected without regard to substantive and procedural due process. Given the circumstances of this case and after considering the record with the memoranda of the parties, it is our view that the petition at bar cannot prosper. We are in accord with the decision reached by the NLRC, modifying the Labor Arbiters own. Settled is the rule that the requisites of a valid dismissal are: (1) the dismissal must be for any of the

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causes provided for under Article 282 of the Labor Code, and (2) only after the employee has been notified in writing and given the opportunity to be heard and defend himself, as required under Sections 2[7] and 5,[8] Rule XIV, Book V of the Rules and Regulations Implementing the Labor Code.[9] Furthermore, even in a case involving willful disobedience of the employers lawful orders as a just cause for the dismissal of an employee, at least two requisites must concur: (1) the employees assailed conduct must have been willful or intentional, the willfulness being characterized by a wrongful and perverse attitude; (2) the order allegedly violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge.[10] In this case, there was no showing that private respondents actuation was marked by any perverse attitude to defy the order of his employer requiring him to submit to an investigation. In fact, when he was ordered to disembark, he willfully obeyed and then waited for the aforesaid investigation. Moreover, petitioner admitted that the memorandum given by its Assistant Vice President for Human Resources was addressed to Capt. Victor Bayotas, directing the latter to inform the private respondent of an investigation. But the investigation was merely fact-finding. The memorandum was not an order directly concerning the alleged dismissal.[11] Apart from this memorandum, there was no notice addressed directly to the private respondent informing him of his dismissal from employment. As held in Pampanga II Electric Cooperative, Inc. vs. National Labor Relations Commission,[12] two written notices must be given to an employee before he may be dismissed. The first notice must apprise him of particular acts or omissions for which his dismissal is sought. The second notice, after hearing, is that of dismissal itself. Moreover, even if in the case at bar private respondent allegedly abandoned his job, as claimed by the petitioner, these notices must be served at the workers last known address as required by the rules.[13] As an alternative ground for the dismissal, petitioner contends it is beyond dispute that private respondent was subsequently charged with having committed the crime of arson. Petitioner went further by claiming that the private respondent was given the opportunity to air his side by the fact that a report of the incident was required of all crew members. To grant monetary award to private respondent, petitioner contends, would in effect reward him for committing an offense. We find petitioners contention less than convincing. Mere filing of a criminal case against the private respondent would not suffice to warrant his dismissal from his job. Basic is the principle that an accused is presumed innocent until proven guilty. And if the basis of an employees termination from employment was that he committed an offense, the same should have been proved by at least substantial evidence, to satisfy administrative due process. In the case at bar, the alleged responsibility of the private respondent concerning the fire aboard ship was not proven at all. Petitioner tried to indict private respondent for the offense of arson by presenting affidavits of witnesses imputing negligence by the private respondent as the proximate cause of the fire. The Labor Arbiter, however, questioned the admissibility and credibility of these exhibits, to wit.: Exhibit 2, affidavit of Lilian Cabahug and Joint affidavit of Vidal Bustamante and Cornelio Tero were offered in order to show that the incident arose out of the negligence of Adolfo Lauron leading to the decision of respondent to place him under investigation. (Respondents Formal Offer of Exhibits dated December 15, 1988). Respondent would want this office to believe that such affidavits were submitted by the crew members in compliance with the order of management to render a report of the incident. (Respondents position paper dated July 18, 1988 page 2). A close scrutiny of the affidavits (A & B), however, reveal (sic) that they were executed on July 3, 1987 and June 29, 1987, respectively, after complainant had already filed a complaint for illegal dismissal with the DOLE. The assumption that can be drawn therefrom is that the execution thereof was merely a rectificatory measure of management to establish compliance with the requirements of due process and not as bases for a supposed investigation.[14] An affidavit is only prima facie evidence and should be received with caution because of its weak probative force. It is not a complete reproduction of what the declarant has in mind. Nor is it indubitable when prepared on command or as a requirement by someone in authority. Unless the affiant is placed on the witness stand to testify thereon, an affidavit is considered hearsay. The affidavits of alleged witnesses do not constitute evidence sufficient to prove that Adolfo Lauron is administratively responsible for the offense of arson so as to warrant his termination. The constitutional guarantee of protection to labor and security of tenure requires that an employer terminate the services of an employee only for valid and just causes which must be supported by substantial evidence.[15] The burden of proving that the termination of an employee is for a valid or authorized cause rests on the employer.[16] In any event, the employer must comply with due process requirements before any termination is done. That burden was not discharged by petitioner. Thus, we find no reason to reverse the ruling of the public respondent NLRC that the private respondent was illegally dismissed. Anent the subsidiary issue, petitioner alleges that the Labor Arbiter and the NLRC erred in determining the

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length of service of the private respondent. By attaching several vouchers as proof of payment of separation pay from prior years of service to the petitioner from August 30, 1968 to December 31, 1980, petitioner claims that private respondents unpaid separation pay should be reckoned only from the time of re-employment as watchman, or from January 1, 1981. However, it can be gleaned from the records that the Labor Arbiter considered all the evidence presented by the parties and ascertained that the private respondents employment started in 1962. The Labor Arbiter also took note of the existence of a Release and Quitclaim. As indicated therein, the private respondent received on October 25, 1985, the amount of P5,430.00 representing his advance partial retirement pay from January 1, 1971 to December 31, 1980 (10 years).[17] Moreover, petitioner made conflicting assertions in the Petition filed before this Court and in the Motion for Reconsideration before the NLRC. In its motion before the NLRC, petitioner claimed that Lauron was employed on January 1, 1971.[18] In the present petition, petitioner states that voucher number 07603, dated October 7, 1983, concerned the separation pay for services rendered by private respondent from August 30, 1968, until December 31, 1970.[19] Now, how could petitioner give private respondent a separation pay from August 30, 1968, to December 31, 1970, if he was employed only on January 1, 1971? Thus, the contradictory allegations of the petitioner cause doubts fatal to its claim to exculpate itself from the liability. With no showing that the Labor Arbiter or the NLRC gravely abused their discretion, or otherwise acted without jurisdiction or in excess of the same,[20] we are bound by their findings. It is not the Courts function at this stage to re-evaluate the findings, given a limited review properly confined to issues of jurisdiction or grave abuse of discretion.[21] Succinctly put, factual issues are beyond the ambit of our review. Finally, we find no cogent reason not to uphold the award by the NLRC of backwages in favor of private respondent, limited to a period of three (3) years without deduction or qualification. Private respondent was illegally dismissed in April, 1987, or before March 21, 1989, so that the benefits of Republic Act No. 6715[22] may not be considered in his favor because this amendatory law has no retroactive effect.[23] Likewise, we agree that in lieu of reinstatement, at the time it was more appropriate for NLRC to order the petitioner to pay to private respondent the separation pay equivalent to one-month salary for every year of service, rather than compel his reinstatement. It is settled that separation pay may be given to the employee only as an alternative to reinstatement emanating from illegal dismissal.[24] Moreover, in this case, reinstatement appears also not in the best interest of the parties after the bitter exchange between them concerning the alleged arson on board ship wherein the private respondent as a watchman was being implicated, though unsuccessfully, by petitioners crew so that now the relations of the parties have become so strained that reinstatement would pose a risk to the employer or its shipping business.[25] WHEREFORE, the petition is hereby DISMISSED, and the decision dated August 7, 1990, and the resolution dated November 29, 1990, of the National Labor Relations Commission, are hereby AFFIRMED. Costs against petitioner. SO ORDERED. Bellosillo, (Chairman), Puno, Mendoza, and Buena, JJ., concur.

Arsenio Lumiqued vs Apolonio Exevea et al 6 11 2010 Due Process Assistance by Counsel Lumiqued was the Regional Director of DAR-CAR. He was charged by Zamudio, the Regional Cashier, for dishonesty due to questionable gas expenses under his office. It was alleged that he was falsifying gas receipts for reimbursements and that he had an unliquidated cash advance worth P116,000.00. Zamudio also complained that she was unjustly removed by Lumiqued two weeks after she filed the two complaints. The issue was referred to the DOJ. Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not assisted by counsel. On the second hearing date, he moved for its resetting to July 17, 1992, to enable him to employ the services of counsel. The committee granted the motion, but neither Lumiqued nor his counsel appeared on the date he himself had chosen, so the committee deemed the case submitted for resolution. The Investigating Committee recommended the dismissal of Lumiqued. DOJ Sec Drilon adopted the recommendation. Fidel Ramos issued AO 52 dismissing Lumiqued. ISSUE: Does the due process clause encompass the right to be assisted by counsel during an administrative

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inquiry? HELD: The SC ruled against Lumiqued. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation conducted by the committee created by Department Order No. 145 was for the purpose of determining if he could be held administratively liable under the law for the complaints filed against him. The right to counsel is not indispensable to due process unless required by the Constitution or the law. . . . There is nothing in the Constitution that says that a party in a non-criminal proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side. In administrative proceedings, the essence of due process is simply the opportunity to explain ones side. Whatever irregularity attended the proceedings conducted by the committee was cured by Lumiqueds appeal and his subsequent filing of motions for reconsideration. NOTES: EQUAL PROTECTION Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. Substantive equality is NOT enough, it is also required that the law be enforced and applied equally. Even if the law be fair and impartial on its face, it will still violate equal protection if it is administered with an evil eye and uneven hand, so as to unjustly benefit some and prejudice others. The right to equal protection, basic as it is, sheltered by the Constitution is a restraint on all the three grand departments of the government and on the subordinate instrumentalities and subdivisions thereof, and on many constitutional powers, like the police power, taxation and eminent domain. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to the privileges conferred and liabilities enforced. Thus, the equal protection clause does not absolutely forbid classifications. WHO ARE PROTECTED Equal protection is available to all persons, natural as well as juridical. Artificial persons, however, are entitled to the protection only insofar as their property is concerned. By constitutional reservation, certain rights are enjoyable only by citizens, such as the rights to vote, hold public office, exploit natural resources, and operate public utilities, although aliens are comprehended in the guaranty. Even ordinary statutes can validly distinguish between citizens and aliens or, for that matter, even between or among citizens only. ARSENIO P. LUMIQUED (deceased), Regional Director, DAR CAR, Represented by his Heirs, Francisca A. Lumiqued, May A. Lumiqued, Arlene A. Lumiqued and Richard A. Lumiqued, petitioners, vs. Honorable APOLINIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL Members of Investigating Committee, created by DOJ Order No. 145 on May 30, 1992; HON. FRANKLIN M. DRILON, SECRETARY OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF Presidential Legal Adviser/Counsel; and HON. LEONARDO A. QUISIMBING, Senior Deputy Executive Secretary of the Office of the President, and JEANNETTE OBAR-ZAMUDIO, Private Respondent, respondents. DECISION ROMERO, J.: Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry?

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Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian Reform Cordillera Autonomous Region (DAR-CAR) until President Fidel V. Ramos dismissed him from that position pursuant to Administrative Order No. 52 dated May 12, 1993. In view of Lumiqueds death on May 19, 1994, his heirs instituted this petition for certiorari and mandamus, questioning such order. The dismissal was the aftermath of three complaints filed by DAR-CAR Regional Cashier and private respondent Jeannette Obar-Zamudio with the Board of Discipline of the DAR. The first affidavit-complaint dated November 16, 1989,[1] charged Lumiqued with malversation through falsification of official documents. From May to September 1989, Lumiqued allegedly committed at least 93 counts of falsification by padding gasoline receipts. He even submitted a vulcanizing shop receipt worth P550.00 for gasoline bought from the shop, and another receipt for P660.00 for a single vulcanizing job. With the use of falsified receipts, Lumiqued claimed and was reimbursed the sum of P44,172.46. Private respondent added that Lumiqued seldom made field trips and preferred to stay in the office, making it impossible for him to consume the nearly 120 liters of gasoline he claimed everyday. In her second affidavit-complaint dated November 22, 1989,[2] private respondent accused Lumiqued with violation of Commission on Audit (COA) rules and regulations, alleging that during the months of April, May, July, August, September and October, 1989, he made unliquidated cash advances in the total amount of P116,000.00. Lumiqued purportedly defrauded the government by deliberately concealing his unliquidated cash advances through the falsification of accounting entries in order not to reflect on `Cash advances of other officials under code 8-70-600 of accounting rules. The third affidavit-complaint dated December 15, 1989,[3] charged Lumiqued with oppression and harassment. According to private respondent, her two previous complaints prompted Lumiqued to retaliate by relieving her from her post as Regional Cashier without just cause. The three affidavit-complaints were referred in due course to the Department of Justice (DOJ) for appropriate action. On May 20, 1992, Acting Justice Secretary Eduardo G. Montenegro issued Department Order No. 145 creating a committee to investigate the complaints against Lumiqued. The order appointed Regional State Prosecutor Apolinario Exevea as committee chairman with City Prosecutor Erdolfo Balajadia and Provincial Prosecutor Felix Cabading as members. They were mandated to conduct an investigation within thirty days from receipt of the order, and to submit their report and recommendation within fifteen days from its conclusion. The investigating committee accordingly issued a subpoena directing Lumiqued to submit his counter-affidavit on or before June 17, 1992. Lumiqued, however, filed instead an urgent motion to defer submission of his counter-affidavit pending actual receipt of two of private respondents complaints. The committee granted the motion and gave him a five-day extension. In his counter-affidavit dated June 23, 1992,[4] Lumiqued alleged, inter alia, that the cases were filed against him to extort money from innocent public servants like him, and were initiated by private respondent in connivance with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He claimed that the apparent weakness of the charge was bolstered by private respondents execution of an affidavit of desistance.[5] Lumiqued admitted that his average daily gasoline consumption was 108.45 liters. He submitted, however, that such consumption was warranted as it was the aggregate consumption of the five service vehicles issued under his name and intended for the use of the Office of the Regional Director of the DAR. He added that the receipts which were issued beyond his region were made in the course of his travels to Ifugao Province, the DAR Central Office in Diliman, Quezon City, and Laguna, where he attended a seminar. Because these receipts were merely turned over to him by drivers for reimbursement, it was not his obligation but that of auditors and accountants to determine whether they were falsified. He affixed his signature on the receipts only to signify that the same were validly issued by the establishments concerned in order that official transactions of the DAR-CAR could be carried out. Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said that he and his companions were cruising along Santa Fe, Nueva Vizcaya on their way to Ifugao when their service vehicle ran out of gas. Since it was almost midnight, they sought the help of the owner of a vulcanizing shop who readily furnished them with the gasoline they needed. The vulcanizing shop issued its own receipt so that they could reimburse the cost of the gasoline. Domingo Lucero, the owner of said vulcanizing shop, corroborated this explanation in an affidavit dated June 25, 1990.[6] With respect to the accusation that he sought reimbursement in the amount of P660.00 for one vulcanizing job, Lumiqued submitted that the amount was actually only P6.60. Any error committed in posting the amount in the books of the Regional Office was not his personal error or accountability.

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To refute private respondents allegation that he violated COA rules and regulations in incurring unliquidated cash advances in the amount of P116,000.00, Lumiqued presented a certification[7] of DAR-CAR Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record as of December 31, 1989. In disputing the charges of oppression and harassment against him, Lumiqued contended that private respondent was not terminated from the service but was merely relieved of her duties due to her prolonged absences. While admitting that private respondent filed the required applications for leave of absence, Lumiqued claimed that the exigency of the service necessitated disapproval of her application for leave of absence. He allegedly rejected her second application for leave of absence in view of her failure to file the same immediately with the head office or upon her return to work. He also asserted that no medical certificate supported her application for leave of absence. In the same counter-affidavit, Lumiqued also claimed that private respondent was corrupt and dishonest because a COA examination revealed that her cash accountabilities from June 22 to November 23, 1989, were short by P30,406.87. Although private respondent immediately returned the amount on January 18, 1990, the day following the completion of the cash examination, Lumiqued claimed that she should be relieved from her duties and assigned to jobs that would not require handling of cash and money matters. Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not assisted by counsel. On the second hearing date, he moved for its resetting to July 17, 1992, to enable him to employ the services of counsel. The committee granted the motion, but neither Lumiqued nor his counsel appeared on the date he himself had chosen, so the committee deemed the case submitted for resolution. On August 12, 1992, Lumiqued filed an urgent motion for additional hearing,[8] alleging that he suffered a stroke on July 10, 1992. The motion was forwarded to the Office of the State Prosecutor apparently because the investigation had already been terminated. In an order dated September 7, 1992,[9] State Prosecutor Zoila C. Montero denied the motion, viz: The medical certificate given show(s) that respondent was discharged from the Sacred Heart Hospital on July 17, 1992, the date of the hearing, which date was upon the request of respondent (Lumiqued). The records do not disclose that respondent advised the Investigating committee of his confinement and inability to attend despite his discharge, either by himself or thru counsel. The records likewise do not show that efforts were exerted to notify the Committee of respondents condition on any reasonable date after July 17, 1992. It is herein noted that as early as June 23, 1992, respondent was already being assisted by counsel. Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency, completeness and thoroughness of the counter-affidavit together with the documentary evidence annexed thereto, such that a judicious determination of the case based on the pleadings submitted is already possible. Moreover, considering that the complaint-affidavit was filed as far back as November 16, 1989 yet, justice can not be delayed much longer. Following the conclusion of the hearings, the investigating committee rendered a report dated July 31, 1992,[10] finding Lumiqued liable for all the charges against him. It made the following findings: After a thorough evaluation of the evidences (sic) submitted by the parties, this committee finds the evidence submitted by the complainant sufficient to establish the guilt of the respondent for Gross Dishonesty and Grave Misconduct. That most of the gasoline receipts used by the respondent in claiming for the reimbursement of his gasoline expenses were falsified is clearly established by the 15 Certified Xerox Copies of the duplicate receipts (Annexes G-1 to G-15) and the certifications issued by the different gasoline stations where the respondent purchased gasoline. Annexes `G-1 to `G-15 show that the actual average purchase made by the respondent is about 8.46 liters only at a purchase price of P50.00, in contrast to the receipts used by the respondent which reflects an average of 108.45 liters at a purchase price of P550.00. Here, the greed of the respondent is made manifest by his act of claiming reimbursements of more than 10 times the value of what he actually spends. While only 15 of the gasoline receipts were ascertained to have been falsified, the motive, the pattern and the scheme employed by the respondent in defrauding the government has, nevertheless, been established. That the gasoline receipts have been falsified was not rebutted by the respondent. In fact, he had in effect admitted that he had been claiming for the payment of an average consumption of 108.45 liters/day by justifying that this was being used by the 4 vehicles issued to his office. Besides he also admitted having signed the receipts. Respondents act in defrauding the government of a considerable sum of money by falsifying receipts constitutes not only Dishonesty of a high degree but also a criminal offense for Malversation through Falsification of Official Documents.

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This committee likewise finds that the respondent have (sic) unliquidated cash advances in the year 1989 which is in violation of established office and auditing rules. His cash advances totalling to about P116,000.00 were properly documented. The requests for obligation of allotments and the vouchers covering the amounts were all signed by him. The mere certification issued by the Administrative Officer of the DAR-CAR cannot therefore rebut these concrete evidences (sic). On the third complaint, this committee likewise believes that the respondents act in relieving the complainant of her functions as a Regional Cashier on December 1, 1989 was an act of harassment. It is noted that this was done barely two weeks after the complainant filed charges against her (sic). The recommendation of Jose G. Medina of the Commission on Audit came only on May 11, 1990 or almost six months after the respondents order relieving the complainant was issued. His act in harassing a subordinate employee in retaliation to a complaint she filed constitute(s) Gross Misconduct on the part of the respondent who is a head of office. The affidavits of Joseph In-uyay and Josefina Guting are of no help to the respondent. In fact, this only show(s) that he is capable of giving bribes if only to have the cases against him dismissed. He could not have given a certain Benigno Aquino III the sum of P10,000.00 for any other purpose. Accordingly, the investigating committee recommended Lumiqueds dismissal or removal from office, without prejudice to the filing of the appropriate criminal charges against him. Acting on the report and recommendation, former Justice Secretary Franklin M. Drilon adopted the same in his Memorandum to President Fidel V. Ramos dated October 22, 1992. He added that the filing of the affidavit of desistance[11] would not prevent the issuance of a resolution on the matter considering that what was at stake was not only the violation of complainants (herein private respondents) personal rights but also the competence and fitness of the respondent (Lumiqued) to remain in public office. He opined that, in fact, the evidence on record could call for a punitive action against the respondent on the initiative of the DAR. On December 17, 1992, Lumiqued filed a motion for reconsideration of the findings of the Committee with the DOJ.[12] Undersecretary Ramon S. Esguerra indorsed the motion to the investigating committee.[13] In a letter dated April 1, 1993, the three-member investigating committee informed Undersecretary Esguerra that the committee had no more authority to act on the same (motion for reconsideration) considering that the matter has already been forwarded to the Office of the President and that their authority under Department Order No. 145 ceased when they transmitted their report to the DOJ.[14] Concurring with this view, Undersecretary Esguerra informed Lumiqued that the investigating committee could no longer act on his motion for reconsideration. He added that the motion was also prematurely filed because the Office of the President (OP) had yet to act on Secretary Drilons recommendation.[15] On May 12, 1993, President Fidel V. Ramos himself issued Administrative Order No. 52 (A.O. No. 52),[16] finding Lumiqued administratively liable for dishonesty in the alteration of fifteen gasoline receipts, and dismissing him from the service, with forfeiture of his retirement and other benefits. Thus: That the receipts were merely turned over to him by his drivers and that the auditor and accountant of the DARCAR should be the ones to be held liable is untenable. The receipts in question were signed by respondent for the purpose of attesting that those receipts were validly issued by the commercial establishments and were properly disbursed and used in the official business for which it was intended. This Office is not about to shift the blame for all these to the drivers employed by the DAR-CAR as respondent would want us to do. The OP, however, found that the charges of oppression and harassment, as well as that of incurring unliquidated cash advances, were not satisfactorily established. In a petition for appeal[17] addressed to President Ramos, Lumiqued prayed that A.O. No. 52 be reconsidered and that he be reinstated to his former position with all the benefits accorded to him by law and existing rules and regulations. This petition was basically premised on the affidavit dated May 27, 1993, of a certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to having authored the falsification of gasoline receipts and attested to petitioner Lumiqueds being an honest man who had no premonition that the receipts he (Dwight) turned over to him were altered.[18] Treating the petition for appeal as a motion for the reconsideration of A.O. No. 52, the OP, through Senior Deputy Executive Secretary Leonardo A. Quisumbing, denied the same on August 31, 1993. Undaunted, Lumiqued filed a second motion for reconsideration, alleging, among other things, that he was denied the constitutional right to counsel during the hearing.[19] On May 19, 1994,[20] however, before his motion could be resolved, Lumiqued died. On September 28, 1994,[21] Secretary Quisumbing denied the second motion for reconsideration for lack of merit.

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Hence, the instant petition for certiorari and mandamus praying for the reversal of the Report and Recommendation of the Investigating Committee, the October 22, 1992, Memorandum of then Justice Secretary Drilon, A.O. No. 52 issued by President Ramos, and the orders of Secretary Quisumbing. In a nutshell, it prays for the payment of retirement benefits and other benefits accorded to deceased Arsenio Lumiqued by law, payable to his heirs; and the backwages from the period he was dismissed from service up to the time of his death on May 19, 1994.[22] Petitioners fault the investigating committee for its failure to inform Lumiqued of his right to counsel during the hearing. They maintain that his right to counsel could not be waived unless the waiver was in writing and in the presence of counsel. They assert that the committee should have suspended the hearing and granted Lumiqued a reasonable time within which to secure a counsel of his own. If suspension was not possible, the committee should have appointed a counsel de oficio to assist him. These arguments are untenable and misplaced. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation.[23] It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation conducted by the committee created by Department Order No. 145 was for the purpose of determining if he could be held administratively liable under the law for the complaints filed against him. The order issued by Acting Secretary of Justice Montenegro states thus: In the interest of the public service and pursuant to the provisions of existing laws, a Committee to conduct the formal investigation of the administrative complaint for oppression, dishonesty, disgraceful and immoral conduct, being notoriously undesirable and conduct prejudicial to the best interest of the service against Mr. ARSENIO P. LUMIQUED, Regional Director, Department of Agrarian Reform, Cordillera Autonomous Region, is hereby created x x x.[24] As such, the hearing conducted by the investigating committee was not part of a criminal prosecution. This was even made more pronounced when, after finding Lumiqued administratively liable, it hinted at the filing of criminal case for malversation through falsification of public documents in its report and recommendation. Petitioners misconception on the nature of the investigation [25] conducted against Lumiqued appears to have been engendered by the fact that the DOJ conducted it. While it is true that under the Administrative Code of 1987, the DOJ shall administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system,[26] conducting criminal investigations is not its sole function. By its power to perform such other functions as may be provided by law, [27] prosecutors may be called upon to conduct administrative investigations. Accordingly, the investigating committee created by Department Order No. 145 was duty-bound to conduct the administrative investigation in accordance with the rules therefor. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondents capacity to represent himself and no duty rests on such a body to furnish the person being investigated with counsel.[28] In an administrative proceeding such as the one that transpired below, a respondent (such as Lumiqued) has the option of engaging the services of counsel or not. This is clear from the provisions of Section 32, Article VII of Republic Act No. 2260[29] (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 292[30] (otherwise known as the Administrative Code of 1987). Excerpts from the transcript of stenographic notes of the hearings attended by Lumiqued[31] clearly show that he was confident of his capacity and so opted to represent himself. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. Furthermore, petitioners reliance on Resolution No. 94-0521 of the Civil Service Commission on the Uniform Procedure in the Conduct of Administrative Investigation stating that a respondent in an administrative complaint must be informed of his right to the assistance of a counsel of his choice,[32] is inappropriate. In the first place, this resolution is applicable only to cases brought before the Civil Service Commission.[33] Secondly, said resolution, which is dated January 25, 1994,

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took effect fifteen days following its publication in a newspaper of general circulation,[34] much later than the July 1992 hearings of the investigating committee created by Department Order No. 145. Thirdly, the same committee was not remiss in the matter of reminding Lumiqued of his right to counsel. Thus at the July 3, 1992, hearing, Lumiqued was repeatedly appraised of his option to secure services of counsel: RSP EXEVEA: This is an administrative case against Director Lumiqued. Director Lumiqued is present. The complainant is present, Janet Obar-Zamudio. Complainant has just been furnished with a copy of the counter-affidavit of the respondent. Do you have a counsel, Director? DIR. LUMIQUED: I did not bring anybody, Sir, because when I went to see him, he told me, Sir, that he has already set a hearing, morning and afternoon today. RSP EXEVEA: So, we will proceed with the hearing even without your counsel? You are willing to proceed with the hearing even without your counsel? DIR. LUMIQUED: Yes, I am confident . . . CP BALAJADIA: You are confident that you will be able to represent yourself? DIR. LUMIQUED: That is my concern.[35] (Underscoring supplied) In the course of private respondents damaging testimony, the investigating committee once again reminded Lumiqued of his need for a counsel. Thus: CP BALAJADIA: Q. (To Director Lumiqued) You really wish to go through with this even without your counsel? DIRECTOR LUMIQUED: A. I think so, Sir. CP BALAJADIA: Let us make it of record that we have been warning you to proceed with the assistance of counsel but you said that you can take care of yourself so we have no other alternative but to proceed.[36] (Underscoring supplied) Thereafter, the following colloquies transpired: CP BALAJADIA: We will suspend in the meantime that we are waiting for the supplemental affidavit you are going to present to us. Do you have any request from the panel of investigators, Director Lumiqued? DIRECTOR LUMIQUED: I was not able to bring a lawyer since the lawyer I requested to assist me and was the one who prepared my counter-affidavit is already engaged for a hearing and according to him he is engaged for the whole month of July. RSP EXEVEA: We cannot wait . . . CP BALAJADIA: Why dont you engage the services of another counsel. The charges against you are quite serious. We are not saying you are guilty already. We are just apprehensive that you will go through this investigation without a counsel. We would like you to be protected legally in the course of this investigation. Why dont you get the services of another counsel. There are plenty here in Baguio... DIRECTOR LUMIQUED: I will try to see, Sir . . . CP BALAJADIA: Please select your date now, we are only given one month to finish the investigation, Director Lumiqued. RSP EXEVEA: We will not entertain any postponement. With or without counsel, we will proceed. CP BALAJADIA: Madam Witness, will you please submit the document which we asked for and

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Director Lumiqued, if you have other witnesses, please bring them but reduce their testimonies in affidavit form so that we can expedite with the proceedings.[37] At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the services of counsel. Pertinent excerpts from said hearing follow: FISCAL BALAJADIA: I notice also Mr. Chairman that the respondent is not being represented by a counsel. The last time he was asked to invite his lawyer in this investigation. May we know if he has a lawyer to represent him in this investigation? DIR. LUMIQUED: There is none Sir because when I went to my lawyer, he told me that he had set a case also at 9:30 in the other court and he told me if there is a possibility of having this case postponed anytime next week, probably Wednesday so we will have good time (sic) of presenting the affidavit. FISCAL BALAJADIA: Are you moving for a postponement Director? May I throw this to the panel. The charges in this case are quite serious and he should be given a chance to the assistance of a counsel/lawyer. RSP EXEVEA: And is (sic) appearing that the supplemental-affidavit has been furnished him only now and this has several documents attached to it so I think we could grant him one last postponement considering that he has already asked for an extension. DIR. LUMIQUED: Furthermore Sir, I am now being bothered by my heart ailment.[38] The hearing was reset to July 17, 1992, the date when Lumiqued was released from the hospital. Prior to said date, however, Lumiqued did not inform the committee of his confinement. Consequently, because the hearing could not push through on said date, and Lumiqued had already submitted his counter-affidavit, the committee decided to wind up the proceedings. This did not mean, however, that Lumiqued was short-changed in his right to due process. Lumiqued, a Regional Director of a major department in the executive branch of the government, graduated from the University of the Philippines (Los Baos) with the degree of Bachelor of Science major in Agriculture, was a recipient of various scholarships and grants, and underwent training seminars both here and abroad.[39] Hence, he could have defended himself if need be, without the help of counsel, if truth were on his side. This, apparently, was the thought he entertained during the hearings he was able to attend. In his statement, That is my concern, one could detect that it had been uttered testily, if not exasperatedly, because of the doubt or skepticism implicit in the question, You are confident that you will be able to represent yourself? despite his having positively asserted earlier, Yes, I am confident. He was obviously convinced that he could ably represent himself. Beyond repeatedly reminding him that he could avail himself of counsel and as often receiving the reply that he is confident of his ability to defend himself, the investigating committee could not do more. One can lead a horse to water but cannot make him drink. The right to counsel is not indispensable to due process unless required by the Constitution or the law. In Nera v. Auditor General,[40] the Court said: x x x. There is nothing in the Constitution that says that a party in a non-criminal proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side. In administrative proceedings, the essence of due process is simply the opportunity to explain ones side. One may be heard, not solely by verbal presentation but also, and perhaps even much more creditably as it is more practicable than oral arguments, through pleadings.[41] An actual hearing is not always an indispensable aspect of due process.[42] As long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process.[43] Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of.[44] Lumiqueds appeal and his subsequent filing of motions for reconsideration cured whatever irregularity attended the proceedings conducted by the committee.[45] The constitutional provision on due process safeguards life, liberty and property.[46] In the

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early case of Cornejo v. Gabriel and Provincial Board of Rizal [47] the Court held that a public office is not property within the sense of the constitutional guarantee of due process of law for it is a public trust or agency. This jurisprudential pronoucement has been enshrined in the 1987 Constitution under Article XI, Section 1 on accountability of public officers, as follows: Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. When the dispute concerns ones constitutional right to security of tenure, however, public office is deemed analogous to property in a limited sense; hence, the right to due process could rightfully be invoked. Nonetheless, the right to security of tenure is not absolute. Of equal weight is the countervailing mandate of the Constitution that all public officers and employees must serve with responsibility, integrity, loyalty and efficiency.[48] In this case, it has been clearly shown that Lumiqued did not live up to this constitutional precept. The committees findings pinning culpability for the charges of dishonesty and grave misconduct upon Lumiqued were not, as shown above, fraught with procedural mischief. Its conclusions were founded on the evidence presented and evaluated as facts. Well-settled in our jurisdiction is the doctrine that findings of fact of administrative agencies must be respected as long as they are supported by substantial evidence, even if such evidence is not overwhelming or preponderant.[49] The quantum of proof necessary for a finding of guilt in administrative cases is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[50] Consequently, the adoption by Secretary Drilon and the OP of the committees recommendation of dismissal may not in any way be deemed tainted with arbitrariness amounting to grave abuse of discretion. Government officials are presumed to perform their functions with regularity. Strong evidence is not necessary to rebut that presumption,[51] which petitioners have not successfully disputed in the instant case. Dishonesty is a grave offense penalized by dismissal under Section 23 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987. Under Section 9 of the same Rule, the penalty of dismissal carries with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service. The instant petition, which is aimed primarily at the payment of retirement benefits and other benefits plus backwages from the time of Lumiqueds dismissal until his demise, must, therefore, fail. WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED and Administrative Order No. 52 of the Office of the President is AFFIRMED. Costs against petitioners. SO ORDERED.

ROBERTO CORDENILLO, petitioner, vs. HON. EXECUTIVE SECRETARY (Office of the President), and JOSE BOLIVAR, respondents. DECISION HERMOSISIMA, JR., J.: The nullification of two (2) Resolution promulgated by the Office of the President dated May 7, 1993[1] and June 9, 1994,[2] respectively, is sought by this petition, for the resolution ordered the Department of Agriculture and the Bureau of Fisheries and Aquatic Resources to process the fishpond lease application filed by private respondent Jose Bolivar covering a fishpond area of twenty (20) hectares, situated at Barrio Malag-it, Pontevedra, Capiz. The following antecedent facts and proceedings are all undisputed: 1. Private respondent Jose Bolivar was granted by the Bureau of Forestry, now Bureau of Forest Development, on September 17, 1963, Nipa-Bacauan (NB) Permit No. 1897, covering 16.0 hectares in Pontevedra, Capiz, while [one] Julio de Jesus was issued by the defunct Philippine Fisheries Commission, now Bureau of Fisheries and Aquatic Resources (BFAR) Fishpond Permit No. 5423 on June 21, 1965, covering 35.0 hectares likewise located at Pontevedra, Capiz. 2. On August 13, 1963, petitioner Roberto Cordenillo filed with the Bureau of Lands, now Lands Management Bureau, a Miscellaneous Sales Application (MSA) over about 134.0 hectares in the same locality, which area included the areas under private respondent Jose Bolivars NB Permit and Julio de Jesus fishpond permit. Simultaneously, petitioner Roberto Cordenillo entered and occupied the area he applied for and, subsequently, constructed a fishpond on a ten (10)- hectare portion thereof. This ten (10)-hectare portion was later on found to be within the area under private respondent Jose Bolivars NB Permit.

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3. Both private respondents Jose Bolivar and Julio de Jesus filed protests against the MSA of petitioner Roberto Cordenillo. The protests were investigated and heard by the District Land Officer and District Forester of Roxas City and also by the Committee on Investigations of the then Department of Agriculture and Natural Resources (DANR). After the investigation and ocular inspection, said committee submitted its report on October 15, 1973, containing, among others, the following observation: 1. That the area covered by the Nipa-Bacauan Permit No. 1897 of Jose Bolivar and the area covered by Fp.[No.] 5423 of Julio de Jesus are embraced and covered by the Miscellaneous lease application of Roberto Cordenillo. 2. That Roberto Cordenillo constructed a fishpond of approximately 10.0 hectares which is now fully developed and productive situated inside the Nipa-Bacauan permit of Jose Bolivar. 3. That Jose Bolivar and Julio de Jesus have updated their rentals. The Nipa-Bacauan permit of Jose Bolivar issued on September 17, 1963 to expire June 30, 1964 was, however, first extended on September 23, 1969; the Fp. No. 5423 of Julio de Jesus issued on June 21, 1965 was first extended on March 18, 1968. 4. There is no visible improvement in the area claimed by Julio de Jesus. 5. On September 17, 1963 the Bureau of Forestry issued a Nipa-Bacauan permit to Jose Bolivar but on November 6, 1964 it rejected the Nipa-Bacauan application of Roberto Cordenillo for lack of jurisdiction over the area. 6. That Roberto Cordenillo applied for a miscellaneous lease application with the Bureau of Lands and later also a N.B. permit with the Bureau of Forestry. When his application for N.B. permit with the Bureau of Forestry was rejected for lack of jurisdiction, he pursued his miscellaneous lease application with the Bureau of Lands. xxx 4. Accordingly, then Undersecretary of DANR, Jose D. Drilon, Jr., after appropriate proceedings, issued an Order dated January 28, 1974, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, it is hereby ordered that: 1. The Nipa-Bacauan Permit No. 1897 issued in favor of Jose Bolivar covering approximately sixteen hectares be, as hereby it is, CANCELLED; 2. The Miscellaneous Lease Application of Roberto Cordenillo covering approximately 134 hectares be, as hereby it is, REJECTED. 3. Fishpond Permit No. 5423 issued in favor of Julio de Jesus be, as hereby it is, CANCELLED; 4. Roberto Cordenillo SECURE a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectares which he has developed as shown on the attached sketch; 5. The rest of the area applied by Roberto Cordenillo covered by his miscellaneous lease application which is suitable for fishpond purposes be RELEASED in favor of the Bureau of Fisheries for Disposition; and 6. Jose Bolivar be given PREFERENCE to apply with the Bureau of Fisheries for the adjoining area suitable for fishpond purposes covering an area of twenty (20) hectares. The Bureau of Forest Development is hereby ADMONISHED for having renewed the Nipa-Bacauan Permit of Jose Bolivar even after it had previously declared itself as having no jurisdiction over the area in question, which area is a part of the Tinagong Dagat Bay. The same Office is enjoined to exercise more caution and due diligence in acting on similar cases in the future to avoid damage or prejudice to innocent parties affected by such action, in this case, Mr. Bolivar. To repair the damage Mr. Bolivar may have suffered from the erroneous action of that Bureau, it is hereby reinterated that special preference be given by the Office and other agencies of this Department concerned in securing for him a similar permit over any adjoining or neighboring area. xxx 5. Not satisfied, private respondent Jose Bolivar sought a reconsideration of the above-mentioned order by filing the requisite motion and memorandum, dated February 25 and March 21, 1974, respectively. On the basis thereof, the then Minister of Natural Resources Jose Leido, Jr., issued an Order dated March 31, 1980, modifying the aforesaid Order dated January 28, 1974 of Undersecretary Jose D. Drilon, Jr., the dispositive portion of which reads as follows: PREMISES CONSIDERED, the Order of the then Undersecretary of Agriculture and Natural Resources, dated January 28, 1974, is hereby modified in the sense that Fishpond Permit No. 5423 in the name of Julio de Jesus and the miscellaneous sales application of Roberto Cordenillo shall remain cancelled and rejected, respectively; that Roberto Cordenillo illegally occupied and developed a portion of the area covered by Nipa-Bacauan Permit No. 1897 of Jose Bolivar and, accordingly, Roberto Cordenillo shall vacate said area occupied and all improvements introduced and found therein are forfeited in favor of the government and that Jose Bolivar is given preference over the area covered by his Nipa-Bacauan Permit No. 1897. This Order shall be immediately executory. xxx xxx 6. Petitioner Roberto Cordenillo filed a motion for reconsideration of the aforementioned Order dated March 31,

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1980 of Minister Jose Leido, Jr., and the same motion was denied on September 4, 1980. 7. Accordingly, on September 25, 1980, petitioner Roberto Cordenillo appealed to the Office of the President the aforementioned Order dated March 31, 1980 of Minister Jose Leido, Jr. 8. On October 29, 1981, the Office of the President, through then Acting Presidential Executive Assistant Joaquin T. Venus, Jr., rendered a Decision, the dispositive portion of which reads as follows: WHEREFORE, THE Order of the Minister of Natural Resources dated March 31, 1980 is hereby set aside. In lieu thereof, the Order of then Undersecretary of Agriculture and Natural Resources Jose D. Drilon (sic), dated January 28, 1974, directing, inter alia that Roberto Cordenillo secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectare (sic) which he has developed, is hereby reinstated. xxx xxx 9. On november 19, 1981, private respondent JOSE bolivar moved to reconsider the aforementioned Decision dated October 29, 1981. In a Resolution dated March 19, 1982, the Office of the President resolved to dismiss private respondent Jose Bolivars motion for reconsideration and declared subject Decision dated October 29, 1981 as final. 10. Pursuant to the above-mentioned Resolution dated March 19, 1982 of the Office of the President, petitioner Roberto Cordenillo filed his Fishpond Application over an area of approximately ten (10) hectares on October 2, 1985, while private respondent Jose Bolivar filed the Fishpond Application covering the adjoining area of twenty (20) hectares on August 31, 1985. 11. Subsequently, or on October 8, 1985, petitioner Roberto Cordenillo sought clarification from the Office of the President on the correct or proper interpretation of its Decision dated October 29, 1981, specifically as to wether said Decision reinstated the whole dispositive portion of the Order of then Undersecretary of Agriculture and Natural Resources Jose D. Drilon, Jr. dated January 28, 1974, or only that part thereof, directing petitioner Roberto Cordenillo to secure a fishpond lease agreement from the Bureau of Fisheries covering the area approximately ten (10) hectares developed by him as stated in the subject Decision. 12. In reply, the Office of the President informed petitioner Roberto Cordenillo in its letter of April 2, 1986, that x x x the Decision of this Office in O.P. Case No. 1836 dated October 29, 1985 (sic), has the effect of reinstating the Order of then Undersecretary of Agriculture and Natural Resources Jose Drilon (sic), dated January 28, 1974, only insofar as it directed Roberto Cordenillo to secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectares which he has developed. 13. Meanwhile, it appearing that the BFAR has not acted upon his fishpond application for the twenty (20)hectare area mentioned in the Drilon Order dated January 28, 1974, which was reinstated in the O.P. Decision of October 29, 1981, and considering further that a portion thereof still remains in the possession of petitioner Roberto Cordenillo, private respondent Jose Bolivar filed with the Office of the President the instant Ex-PARTE MOTION (For Issuance of the Writ of Implementation) on March 17, 1988, praying for the issuance of an Order directing BFAR and the Department of Agriculture to issue to him (private respondent Jose Bolivar) a twenty-five (25)-year fishpond lease agreement over an area of twenty (20) hectares adjoining the ten (10) hectares shown in the sketch to the Drilon Order of January 28,1974, and the Capiz P.C. Provincial Command to clear the aforesaid area of occupants and to deliver the physical possession thereof to private respondent Jose Bolivar. 14. In a SUPPLEMENTAL TO EX-PARTE MOTION (for the Issuance of an Order of Implementation), dated June 2, 1988, private respondent Jose Bolivar, through counsel, adverted to the Memorandum of Fisheries Regional Director Matias A. Guieb dated October 29, 1985, finding petitioner Roberto Cordenillo to have acted in bad faith when he occupied the entire area of 47.9852 hectares covered by his rejected Fishpond Permit Application No. 36939 without the benefit of a lease agreement and with full knowledge of the pending controversy over the said area before the DANR. Additionally, private respondent Jose Bolivar prayed for a declaration that the entire decretal portion of the Drilon Order dated January 28, 1974, was reinstated or revived by the O.P. Decision dated October 29, 1981.[3] It is significant to point out at this juncture that prior to private respondent Bolivars aforementioned twin Motions dated March 17, 1988 and June 2, 1988 praying for the issuance of a fishpond lease agreement covering the twenty (20) hectares adjoining petitioner Cordenillos ten (10) hectares of fishpond, and for a categorical declaration that the entire decretal portion of Drilon Order dated January 28, 1974, was reinstated or revived by the Decision dated October 29, 1981 as rendered by Acting Presidential Executive Assistant Joaquin T. Venus, Jr. of the Office of the President, the Secretary and the Regional Director of the Department of Agriculture had already earlier made official issuances to the effect that the decretal portion of the Drilon Order dated January 28,1974 was and should be deemed, reinstated or revived by the Venus Decision dated October 29, 1981. In fact, these Department of Agriculture issuances, namely, two (2) Memoranda dated October 1, 1986 and February 28, 1989, respectively, issued by the Regional Director and a 4th Indorsement dated July 12, 1988

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issued by the Secretary, both of said department, were the subject of a Petition for Injunction dated May 4, 1989 filed by petitioner before the Regional Trial Court of Roxas City.[4] In that petition, the trial court was asked to restrain the Secretary of Agriculture, the Regional Director, and the Provincial Agricultural Officer of Capiz from implementing the aforesaid Memoranda and 4th Indorsement on the ground that the approval by respondent Secretary of the application for issuance of a fishpond lease agreement in favor of the private respondent [covering] the subject 20-hectare fishpond would enable private respondent to appropriate the subject 20hectare fishpond, thus depriving petitioner of the [land] and its improvements thereon without due process of law and would therefore unjustly enrich the private respondent at the expense of another.[5] The trial court denied the Petition for Injunction in an Order dated June 8, 1989. Aggrieved by said Order of denial, petitioner filed with this court a Petition for Certiorari[6] docketed as G.R. No. 88814 seeking the nullification and setting aside of said Order of denial and the issuance of a temporary restraining order and/or a writ of preliminary injunction restraining the Secretary of Agriculture, the Regional Director and the Provincial Agricultural Officer of Capiz, all of the Department of Agriculture, from implementing or in any way enforcing the Venus Decision dated October 29, 1981 which, in turn, reinstated and/or revived the entire decretal portion of the Drilon Order dated January 28, 1974. In a Resolution dated July 19, 1989,[7] we resolved to refer G.R. No. 88814 to the Court of Appeals which has concurrent jurisdiction over the subject matter of the petition. Thus, subsequently, the same petition was docketed as CA-G.R. SP No. 18397. On August 14, 1989, the Court of Appeals dismissed said petition, ruling as it did that the therein assailed issuances rendered by the various officials of the Department of Agriculture: xxx [do] not in any way show that the Bureau of Fisheries had intended to dispossess [petitioner] Cordenillo of the ten-hectare portion which he had already allegedly cultivated. The Memorandum Order concerned merely advised Bolivar to apply for the adjoining area suitable for fishpond purposes covering twenty (20) hectares, and for Cordenillo to file and submit all the requirements for 25-year lease agreement over the area of 11.0916 hectares x x x and likewise, to apply over the area of 27.9852 hectares if he so desire (sic) which was declared vacant and open to any qualified applicants who shall also pay the appraised value of improvements found therein, if ther is any. There is nothing yet, as of this point in time, to persuade this Court to believe that the ten-hectare fishpond which Cordenillo has developed, is to be awarded by the Bureau of Fisheries to Bolivar. Until such time that the identities of the areas respectively applied for by Cordenillo and Bolivar shall have been delineated by the Bureau of Fisheries, it would be premature for petitioner to come to court to seek for injunctive relief. x x x. xxx[8] In the light of the extent of trouble, as shown above, to which petitioner Cordenillo went in order to challenge and invalidate any and all official government declarations as to the efficacy of the Drilon Order dated January 28, 1974 which sanctioned and even favorably endorsed the issuance of a fishpond lease in favor of private respondent Bolivar over twenty (20) hectares of land adjoining the ten (10) hectares adjudicated to petitioner under the same Drilon Order, petitioner Cordenillo, ever true to form, did not lose time in seeking the judicial nullification of the twin Resolutions issued by the Office of the President dated May 7, 1993 and June 9, 1994, respectively, which granted private respondents EX-PARTE MOTION (for Issuance of the Writ of Implementation) and ordered the Department of Agriculture and the Bureau of Fisheries and Aquatic Resources to forthwith process and give due course to the fishpond lease application filed by Jose Bolivar covering twenty (20) hectares s situated at Barrio Malag-it, Pontevedra, Capiz.[9] The Office of the President, through Chief Presidential Legal Counsel Antonio T. Carpio, resolved the aforesaid Ex-Parte Motion of private respondent Bolivar, in this wise: After a close and perceptive study, this Office is persuaded to uphold x x x x Bolivars view that the Decision of this Office dated October29, 1981 [i.e., the Venus Decision] reinstated the entire dispositive portion of the Drilon [sic] order of January 28, 1974, not just that portion thereof (par. 4) advising Cordenillo to secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectares he has developed. It is noteworthy that, long before the rendition by this Office on April 2, 1986 of the clarificatory opinion requested by Cordenillo on the effect of its Decision on the Drilon [sic] order, Fisheries Regional Director Matias A. Guieb had shared the view of Bolivars counsel that what was reinstated by the O.P. Decision of October 29, 1981, was the entire portion of the Drillon [sic] order. Thus, in his memorandum for the BFAR Director, dated August 5, 1985, Director Guieb stated in part: This Office share[s] the view of the Counsel of Jose Bolivar that what was reinstated was the Order dated January 28, 1974, not a portion thereof. This view is also stated in a Memorandum dated 1983-12-09 of the Director of Fisheries and Aquatic Resources quoted hereunder: Take note that in an Order dated January 28,1974 of the then Undersecretary of Agriculture and Natural

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Resources involving an area located in Pontevedra, Capiz, applicant Roberto Cordenillo was awarded an area of 10.0 hectares and a certain Jose Bolivar was given preference to apply with this Office for the adjoining area of 20.0 hectares. This Order was affirmed in an Order issued by the Office of the President dated October 28, 1981. x x x The Director of Lands likewise, in his letter dated May 21, 1985 to the Director of Fisheries, stated: In reply, please be informed that this Office [poses] no objection to the disposition of the land aforesaid through lease for fishpond purposes considering the fact that the miscellaneous lease application of Roberto Cordenillo therefor has already been rejected by the then Secretary of Agriculture and Natural Resources in Order dated January 28, 1974 which was reiterated by Malacaang in its resolution dated March 19, 1982 after several incidents. x x x From the foregoing , it could be deduced and safely conclude[d] that the Decision of the Office of the President dated October 28, 1981 had set aside the Order of the Minister of Natural Resources dated March 31, 1980 in its entirety and reinstated fully the order of the Undersecretary of Agriculture and Natural Resources dated January 28, 1974. Moreover, as may be immediately discerned from the body of O.P. Decision dated October 29, 1981 [i.e., the Venus Decision], what was resolved therein was solely the issue of who between the contending parties is entitled to the award of the 10-hectare portion of the subject fishpond area, nothing more or less. This is as it should be, because that was the lone and only issue raised by Cordenillo in his appeal from the MNR Order of March 31, 1980. If said Decision intended to revive only that particular potion of the Drillon [sic] order relative to the award of the 10 hectares, it should have categorically and emphatically ruled on the right, or rather the disqualification, of Bolivar to acquire the 20 hectares decreed in the Drillon [sic] order. Strangely enough though, said Decision was conspicuously silent on this point. Withal, it is hard to believe that such an important matter, which the subject Decision had discarded and cast into oblivion, despite the precise and categoric[al] language of the dispositive portion of the Drillon [sic] order, would have been left in the said Decision to mere implication. Having opted not to discuss or mention even in passing the issue of Bolivars preferential right to apply for the 20-hectare area, the Decision in question must be taken, in effect, to have affirmed the same and those embodied in paragraphs 1, 2, 3, and 5 of the decretal portion of the Drillon [sic] order. Consequently, the matter of Bolivars right to the award of the 20 hectares not having been controverted or traversed in the subject Decision, the same must be deemed to have been definitively settled or set to rest, along with the other issues discussed in the dispositive portion of the Drillon [sic] order. This must be so, for the Decision of this Office of October 29, 1981, retroacts to the date of the Drillon [sic] order of January 28, 1974. And, having acquired the character of finality as of March 19, 1982, said Decision had, for all legal intents and purposes, concluded the legality, among others, of the conditional award to Bolivar of the 20 hectares and precludes the subsequent determination of the very same issue. xxx It may be apropos to mention that Cordenillo did not appeal the Drillon [sic] order. Hence, in so far as he is concerned, said order had preclusive effect, not only [as to] that portion giving him preferential right to apply by lease for the 10-hectare fishpond area, but the entirety thereof. This Office also notes that, in his Appeal Memorandum filed with this Office, dated September 23, 1980, Cordenillo prayed for the reinstatement of the entire Drillon [sic] order of January 28, 1974. Likewise, in his subsequent Memorandum dated April 20, 1981, Cordenillo asked this Office to uphold the Drillon [sic] order, without qualification or condition whatsoever. Thus, there was no need for Cordenillo to seek clarification on the effect of the October 29, 1981 Decision of this Office on the Drillon [sic] order of January 28, 1974. For its part, this Office cannot be faulted for rendering the aforementioned interpretative ruling, considering that the only issue raised before it at that time was who between Bolivar and Cordenillo is entitled to the 10 hectares in question. For this Office to adhere to its previous interpretation that its Decision of October 29, 1981 did not revive the entire Drillon [sic] order of January 28, 1974, would enable Cordenillo to apply not only for the 20 hectares awarded to Bolivar but also the rest of the 134 hectares covered by his rejected miscellaneous sales application. This, to say the least, is in accord neither with justice nor equity which this Office will not countenance. Upon the foregoing premises, this Office finds, and so holds, that its Decision of October 29, 1981, reinstated and revived the entire dispositive portion of the order of then DANR Secretary Jose D. Drillon [sic] dated January 28, 1974, in DANR Case No. 3909.[10] On May 29, 1993, petitioner filed a Motion for Reconsideration of the aforequoted Resolution. Said Motion was anchored on the following grounds: (1) that the decision rendered by the Office of the President dated April 2, 1986 whereby said office clarified that the Drilon Order was reinstated only insofar as it directed Roberto Cordenillo to secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectares which he has developed, had already become final and executory, thus rendering null and void for being an issuance tainted with grave abuse of discretion, the aforequoted Resolution

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dated May 7, 1993, which in effect reverses aforesaid April 2, 1986 decision; (2) that the aforequoted Resolution was issued in violation of petitioners right to due process; and (3) that the aforequoted Resolution was not supported by the true facts and the laws and jurisprudence of the case. In the Resolution dated June 9, 1994, the Office of the President denied petitioners Motion for Reconsideration in this manner: Anent the first ground, we are not persuaded by movants argument that the Resolution of this Office, dated May 7, 1993, is null and void for lack of jurisdiction and a grave discretion amounting to lack of jurisdiction, allegedly because its clarificatory Order/Decision, of April 2, 1986 had already become final and executory. Being merely interpretative of the main Decision in O.P. Case No. 1863, said clarificatory Order/Decision, assuming the same to have acquired the character of finality, cannot affect, much less divest x x x Bolivar of his preferential right acquired under the Drillon [sic] Order of January 28,1974, which was revived in its entirety by O.P. Decision dated October 29, 1981, to apply for the adjoining area suitable for fishpond purposes covering twenty (20) hectares. This is only as it should be, considering that movant did not appeal the Drillon [sic] order directing, among others, that he secure from the then Bureau of Fisheries a fishpond lease agreement over the 10-hectare fishpond area developed by him. Moreover, Bolivars right to apply for the adjoining area of twenty (20) hectares suitable for fishpond purposes had long become vested with the finality of our Decision of October 29, 1981 on March 19, 1982, which retroacts to the date of the Drillon [sic] order dated January 28,1974. Indeed, to sustain movants argument would mean that this miscellaneous lease application over the 134 hectares that was already rejected in the Drillon [sic] order remains valid and could be pursued by him. Certainly, this is far removed from the intention of this Office when it rendered its October 29, 1981 Decision wherein the only issue raised by movant and resolved therein was his right to lease the 10-hectare area. Concerning the second ground, this Office finds itself hard put to concede validity to movants contention that he was denied due process because he was not afforded opportunity to be heard vis--vis [private respondents] x x x EX-PARTE MOTION (For Issuance of the Writ of Implementation), in view of the instant motion interposed by movant seeking reconsideration of the questioned Resolution. As held by the Supreme Court in the case of Maglasang vs. Ople x x x: x x x As far back as 1935, it has already been settled doctrine that a plea of denial of procedural due process does not lie where a defect consisting of an absence of notice of hearing was thereafter cured by the alleged aggrieved party having had the opportunity to be heard on a motion for reconsideration. What the law prohibits is not the absence of previous notice, but the absolute absence thereof and lack of opportunity to be heard. There is then no occasion to impute deprivation of property without due process where the adverse party was heard on a motion for reconsideration constituting as it does sufficient opportunity for him to inform the Tribunal concerned of his side of the controversy. x x x [W]hat due process contemplates is freedom from arbitrariness and what it requires is fairness or justice, the substance rather than the form being paramount, the conclusion being that the hearing on a motion for reconsideration meets the strict requirement of the process. Lastly, for obvious lack of merit, this Office does not deem it necessary to pass upon the third ground invoked by movant, said Resolution of May 7, 1993 being decidedly congruent with the factual situation and in full accord with settled jurisprudence and legal principles.[11] Undaunted, petitioner simply refuses to concede the futility of his baseless postulations; hence, the instant petition, which, needless to say, is totally devoid of merit. Stripped of non-essentials, petitioner Cordenillos singular and all-consuming cause is to, at all costs, keep possession of the twenty-hectare fishpond over which private respondent Bolivar was granted lease preference under the January 28, 1974 Drilon Order and which fishpond land petitioner has absolutely no right to claim, much less, occupy. Petitioner does not deny that said 20-hectares area is included in the 47.9852 hectares covered by the petitioner s x x x [miscellaneous sales] application and he has been in actual continuous possession thereof sinse [sic] 1963 during which he developed it into a productive fishpond.[12] The records clearly show, however, that the overlapping of fishpond area is to be blamed on petitioner himself, having included in his application dated August 13, 1963 the area already subject of private respondent Bolivars Nipa-Bacauan Permit granted him by the Bureau of Forest Development on September 17, 1963. When petitioner thus occupied said area and built improvements thereon, he did so with full knowledge of private respondent Bolivars existing NipaBacauan Permit covering the same area and the protest filed by the latter against the Miscellaneous Sales Application of petitioner. That protest filed by private respondent Bolivar was resolved with the issuance of the so-called Drilon Order dated January 28,1974. In that order, Jose D. Drilon, Jr., the then Undersecretary of the then Department of Agriculture and Natural Resources (DANR), categorically rejected and correspondingly denied, petitioners Miscellaneous Sales Application. The only concession granted petitioner under said order was a fishpond lease agreement over some ten (10) hectares developed by petitioner into viable fishponds, which 10-hectare area

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was definitely identified in a sketch annexed to the Drilon Order. Apparently, petitioner was granted such 10hectare area in recognition of his subsisting occupation thereof and the improvements thereon built by petitioner. For his part, private respondent Bolivar was unequivocally declared a preferred and first priority lease applicant for the 20-hectare area adjoining petitioners ten (10) hectares. Private respondent Bolivar, at first, did not agree with the Drilon Order. Thus, he filed a Motion for Reconsideration of said order. Acting on said motion, the then Minister of Natural Resources Jose Leido, Jr. issued an Order additionally declaring petitioner Cordenillo to have illegally occupied and developed a portion of the area covered by the Nipa-Bacauan Permit of private respondent Bolivar. Finding such declaration extremely prejudicial to his interests, considering that he had already invested a substantial amount of money in the form of improvements on a portion of the area covered by private respondent Bolivars Nipa-Bacauan Permit, petitioner Cordenillo appealed to the Office of the President. The Office of the President, through then Acting Presidential Executive Assistant Joaquin T. Venus, Jr., rendered a decision setting aside the Leido Order and reinstating the Drilon Order. While the reinstatement of the Drilon Order was made in general, sweeping terms, Venus particularly directed that Roberto Cordenillo secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectare [sic] which he has developed. In effect, Venus Order deleted the Leido declaration that petitioner Cordenillo illegally occupied a portion of the area covered by private respondent Bolivars Nipa-Bacauan Permit. Thus, Bolivar moved for the reconsideration of the Venus Order. Said motion, however, was dismissed, and the Venus Order dated October 29, 1981, which reinstated the Drilon Order, was declared final in a Resolution dated March 19, 1982. With such a declaration of finality of the Venus Order reinstating the Drilon Order, this dispute between petitioner Cordenillo and private respondent Bolivar involving overlapping fishpond area, beginning with Cordenillos intrusion in September, 1963, into a portion of the area covered by Bolivars Nipa-Bacauan Permit, should have long ended in the filing by Cordenillo and Bolivar of their respective fishpond lease applications, the former, for the ten (10) hectares granted him under the Drilon Order, and the latter, for the twenty (20) hectares granted him, with preference, under the same order. In fact, in 1985, both Cordenillo and Bolivar did file their respective fishpond lease applications in accordance with area specifications under the Drilon Order. The events thereafter, however, reveal the singular, real motivation of petitioner Cordenillo for challenging the Drilon Order: petitioner had, in fact, occupied and built improvements on, not only a portion of the area formerly covered by private respondent Bolivars Nipa-Bancauan Permit but also the twenty (20) hectares adjoining the ten (10) hectares granted him under the Drilon Order. In other words, petitioner Cordenillo wanted nothing less and nothing more than that portion of the Drilon Order granting him the ten (10) hectares of fishpond land already occupied by him, i.e., Cordenillo had all the while been consumingly obsessed with finding a way of deleting that portion of the Drilon Order granting Bolivar the adjoining twenty (20) hectares already also occupied by Cordenillo. And so when the Venus Order was issued generally reinstating the Drilon Order but only specifically and explicitly directing the issuance of a lease agreement over the said ten (10) hectares in favor of Cordenillo and leaving out any mention of the preferential lease agreement over the adjoining twenty (20) hectares in favor of Bolivar, petitioner Cordenillo went to town with the boisterous, imperious, and myopic conclusion that the Venus Order reinstated the Drilon Order only insofar as the specific and explicit grant of lease to Cordenillo is concerned. Petitioner Cordenillos wake up call has come, and it is this: Cordenillo is trifling with the processes of this governments administrative offices with his utterly baseless, not to mention, selfish, cause. First. We rule, in no uncertain terms, that the Venus Order reinstated, in whole, the Drilon Order. In the first place, there is simply nothing in the Venus Order that supports petitioners self-serving conclusion that said order only revived the grant to him of the ten(10) hectares already known to have earlier occupied by him. The dispositive portion of the Venus Order reads: WHEREFORE, THE Order of the Minister of Natural Resources dated March 31, 1980 is hereby set aside. In lieu thereof, the Order of then Undersecretary of Agriculture and Natural Resources Jose D. Drillon (sic), dated January 28, 1974, directing, inter alia that Roberto Cordenillo secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectare (sic) which he has developed is hereby reinstated. SO ORDERED.[13] [emphasis ours] On its face, the aforequoted dispositive portion of the Venus Order reinstated the Drilon Order directing, inter alia or among others, the grant to petitioner of the ten (10) hectares already developed by him into fishponds. Undoubtedly, the Venus Order acknowledged the existence of the other directives contained in the Drilon Order by using the term, inter alia. Non-mention thereof in the Venus Order, thus, cannot be deemed abrogation thereof, since such other directives were clearly part of the context within which the Drilon Order was undertaken.

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In the second place, the primary issue passed upon in the Venus Order was the question of who has the better right to the disputed 10-hectare fishpond area.[14] It is helpful to recall that petitioner had included in his Miscellaneous Sales Application a portion of the area covered by private respondent Bolivars Nipa-Bacauan Permit. This is the disputed 10-hectare fishpond area referred to in the Venus Order. Having identified the issue as such, then Acting Presidential Executive Assistant Venus perceived his recourse to be, to choose who between Cordenillo and Bolivar was entitled to the disputed 10-hectare fishpond area. Apparently, then Acting Presidential Executive Assistant Venus was impressed with Cordenillos asseverations of good faith in including said area in his application and decided to categorically declare Cordenillo the good faith occupant of the disputed area over which, he should be given preferential right to lease. Since the Drilon Order adjudicated said area to petitioner Cordenillo, then Acting Presidential Executive Assistant Venus opted to simply reinstate the entire Drilon Order and to quote the pert thereof which was specially responsive and pertinent to, the sole issue of who, between Cordenillo and Bolivar, had better right to said disputed fishpond area. This ten-hectare fishpond area, however, is separate and distinct from the twenty-hectare area adjoining the same which was adjudicated to private respondent Bolivar as preferential lease applicant thereof under the Drilon Order. There is absolutely nothing in the Venus Order that challenged, negated, abrogated, or even modified the status of Bolivar as preferential lease applicant respecting the 20 hectares adjoining Cordenillos 10-hectare fishpond area. We thus, quote, with approval, the following postulations of the Solicitor General: The Decision of the Office of the President (O.P.) dated October 29, 1981 reinstated the entire dispositive portion of the Drilon Order of January 28, 1974, not just that portion thereof (paragraph 4) advising petitioner Roberto Cordenillo to secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten(10) hectares he has developed. It may be immediately discerned from the O.P. Decision dated October 29, 1981, that what was resolved therein was solely the issue of who between the contending parties is entitled to the award of the ten (10)-hectare portion of subject fishpond area, nothing more or less. This is as it should be, because that was the lone and only issue raised by petitioner Roberto Cordenillo in his appeal from the MNR Order of March 31, 1980. If said Decision intended to revive only that particular portion of the Drilon Order of January 28, 1974 relative to the award of the ten (10) hectares, it should have categorically and emphatically ruled on the right, or rather, the disqualification, of private respondent Jose Bolivar to acquire the twenty (20) hectares decreed in the Drilon Order x x x. Strangely enough though, said Decision was conspicuously silent on this point. x x x Having opted not to discuss or mention even in passing the issue of private respondent Jose Bolivars preferential right to apply for the twenty (20) hectares area, the Decision in question must be taken, in effect, to have affirmed the same and those embodied in paragraphs 1, 2, 3, and 5 of the decretal portion of the Drilon Order. Consequently, the matter of private respondent Jose Bolivars right to award of twenty (20) hectares not having been controverted or traversed in the subject Decision, the same must be deemed to have been definitively settled or set to rest, along with the other issues discussed in the dispositive potion of the Drilon Order. This must be so, for the O.P. Decision of October 29, 1981, retroacts to the date of the Drilon Order of January 28, 1974. And having acquired the character of finality as of March 19, 1982, said Decision had, for all legal intents and purposes, concluded the legality, among others, of the conditional award to private respondent Jose Bolivar of the twenty (20) hectares and precluded the subsequent determination of the very same issue. xxx It may be apropos to mention that petitioner Roberto Cordenillo did not appeal the Drilon Order x x x. Hence, insofar as he is concerned, said order had preclusive effect, not only on that portion giving him preferential right to apply by lease for the ten (10)-hectare fishpond area, but the entirety thereof. It should be noted that in his Appeal Memorandum filed with the Office of the President x x x [when he appealed from the Leido Order], petitioner Roberto Cordenillo prayed for the reinstatement of the Drilon Order x x x. Likewise, in his subsequent Memorandum x x x petitioner Roberto Cordenillo asked the Office of the President to uphold the Drilon Order x x x without qualification whatsoever. x x x[15] Second. Petitioner also argues that the herein assailed issuances of the Office of the President are null and void for having been promulgated in grave abuse of discretion amounting to lack of jurisdiction on the ground that the April 2, 1986 Clarificatory Order also issued by the Office of the President, through then Deputy Executive Secretary Fulgencio S. Factoran, Jr., categorically declared the Drilon Order to have been reinstated only insofar as it directed Roberto Cordenillo to secure a fishpond lease agreement from the Bureau of Fisheries covering the area of approximately ten (10) hectares which he has developed.[16] We strongly disagree. If there is anything that was issued in grave abuse of discretion, it is this April 2, 1986 Order. What is ironic, however, is that justification of his finding that the Drilon Order was not reinstated in its entirety, then Deputy Executive Secretary Factoran cited exactly the same reason that rightly supports the contrary conclusion: that the basic appeal to [the Office of the President] tendered only the issue of superiority of right over the disputed 10-hectare area.[17] Being patently null and void for having been issued in total disregard of

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and as completely contrary to, the already final and executory Venus Order reinstating the Drilon Order in its entirety, the April 2, 1986 Clarificatory Order of the Executive Secretary Factoran is incapable of ripening into a final and executory order as stubbornly claimed by petitioner. Finally, petitioner pretends to be a victim of due process violation because he was not afforded the opportunity to be heard vis--vis private respondent Bolivars EX-PARTE MOTION (For Issuance of the Writ of Implementation). Suffice it to say that the mere fact that petitioner assails two Resolution of the Office of the President, the one with the later date of which was issued precisely upon petitioners filing of a Motion for Reconsideration of the Resolution first issued on dated May 7, 1993, shows that petitioner was in fact heard, for purposes of Administrative due process, when he filed said Motion for Reconsideration. As such, any contention of denial of due process must fail as the same was cured by the filing of the Motion for Reconsideration.[18] All told, herein public respondent Executive Secretary did not commit grave abuse of discretion in issuing the herein assailed twin Resolutions. WHEREFORE, the instant petition is HEREBY DISMISSED. Costs against petitioner. SO ORDERED.

DELIA BANGALISAN, LUCILIN CABALFIN, EMILIA DE GUZMAN, CORAZON GOMEZ, CORAZON GREGORIO, LOURDES LAREDO, RODOLFO MARIANO, WILFREDO MERCADO, LIGAYA MONTANCES and CORAZON PAGPAGUITAN, petitioners, vs. HON. COURT OF APPEALS, THE CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents. DECISION REGALADO, J.: This is an appeal by certiorari from the judgment of the Court of Appeals in CA-G.R. SP No. 38316, which affirmed several resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service, as well as its resolution of April 12, 1996 denying petitioners motion for reconsideration.[1] Petitioners, except Rodolfo Mariano, were among the 800 public school teachers who staged mass actions on September 17 to 19, 1990 to dramatize their grievances concerning, in the main, the alleged failure of the public authorities to implement in a just and correct manner certain laws and measures intended for their material benefit. On September 17, 1990, the Secretary of the Department of Education, Culture and Sports (DECS) issued a Return-to-Work Order. Petitioners failed to comply with said order, hence they were charged by the Secretary with grave misconduct; gross neglect of duty; gross violation of Civil Service law, rules and regulations and reasonable office regulations; refusal to perform official duty; gross insubordination; conduct prejudicial to the best interest of the service; and absence without official leave in violation of PD 807, otherwise known as the Civil Service Decree of the Philippines. They were simultaneously placed under preventive suspension. Despite due notice, petitioners failed to submit their answer to the complaint. On October 30, 1990, the DECS Secretary rendered a decision finding petitioners guilty as charged and dismissing them from the service effective immediately. Acting on the motions for reconsideration filed by petitioners Bangalisan, Gregorio, Cabalfin, Mercado, Montances and Pagpaguitan, the Secretary subsequently modified the penalty of dismissal to suspension for nine months without pay. Petitioner Gomez likewise moved for reconsideration with the DECS and then appealed to the Merit Systems Protection Board (MSPB). The other petitioners also filed individual appeals to the MSPB, but all of their appeals were dismissed for lack of merit. Not satisfied with the aforestated adjudication of their respective cases, petitioners appealed to the Civil Service Commission (CSC). The appeals of petitioners Cabalfin, Montances and Pagpaguitan were dismissed for having been filed out of time. On motion for reconsideration, however, the CSC decided to rule on the merits of their appeal in the interest of justice. Thereafter, the CSC issued Resolution No. 94-1765 finding Cabalfin guilty of conduct prejudicial to the best interest of the service and imposing on him a penalty of six months suspension without pay. The CSC also issued Resolutions Nos. 94-2806 and 94-2384 affirming the penalty of nine months suspension without pay theretofore imposed on petitioners Montances and Pagpaguitan. With respect to the appeals of the other petitioners, the CSC also found them guilty of conduct prejudicial to the best interest of the service. It, however, modified the penalty of nine months suspension previously meted

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to them to six months suspension with automatic reinstatement in the service but without payment of back wages. All the petitioners moved for reconsideration of the CSC resolutions but these were all denied,[2] except that of petitioner Rodolfo Mariano who was found guilty only of a violation of reasonable office rules and regulations because of his failure to inform the school of his intended absence and to file an application for leave therefor. This petitioner was accordingly given only a reprimand.[3] Petitioners then filed a petition for certiorari with this Court but, on August 29, 1995, their petition was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95.[4] On October 20, 1995, the Court of Appeals dismissed the petition for lack of merit.[5] Petitioners motion for reconsideration was also denied by respondent court,[6] hence the instant petition alleging that the Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the CSC (1) that penalized petitioners whose only offense was to exercise their constitutional right to peaceably assemble and petition the government for redress of grievances; (2) that penalized petitioner Mariano even after respondent commission found out that the specific basis of the charges that former Secretary Cario filed against him was a falsehood; and (3) that denied petitioners their right to back wages covering the period when they were illegally not allowed to teach.[7] It is the settled rule in this jurisdiction that employees in the public service may not engage in strikes. While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public services. The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike.[8] Petitioners contend, however, that they were not on strike but were merely exercising their constitutional right peaceably to assemble and petition the government for redress of grievances. We find such pretension devoid of merit. The issue of whether or not the mass action launched by the public school teachers during the period from September up to the first half of October, 1990 was a strike has been decided by this Court in a resolution, dated December 18, 1990, in the herein cited case of Manila Public School Teachers Association, et al. vs. Laguio, Jr., supra. It was there held that from the pleaded and admitted facts, these mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers duty to perform, undertaken for essentially economic reasons. It is an undisputed fact that there was a work stoppage and that petitioners purpose was to realize their demands by withholding their services. The fact that the conventional term strike was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation, and not its appearance, will be deemed to be controlling.[9] The ability to strike is not essential to the right of association. In the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose.[10] Further, herein petitioners, except Mariano, are being penalized not because they exercised their right of peaceable assembly and petition for redress of grievances but because of their successive unauthorized and unilateral absences which produced adverse effects upon their students for whose education they are responsible. The actuations of petitioners definitely constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law, rules and regulations. As aptly stated by the Solicitor General, It is not the exercise by the petitioners of their constitutional right to peaceably assemble that was punished, but the manner in which they exercised such right which resulted in the temporary stoppage or disruption of public service and classes in various public schools in Metro Manila. For, indeed, there are efficient but non-disruptive avenues, other than the mass actions in question, whereby petitioners could petition the government for redress of grievances.[11] It bears stressing that suspension of public services, however temporary, will inevitably derail services to the public, which is one of the reasons why the right to strike is denied government employees.[12] It may be conceded that the petitioners had valid grievances and noble intentions in staging the mass actions, but that will not justify their absences to the prejudice of innocent school children. Their righteous indignation does not legalize an illegal work stoppage. As expounded by this Court in its aforementioned resolution of December 18, 1990, in the Manila Public School Teachers Association case, ante: It is, of course, entirely possible that petitioners and their member-teachers had and have some legitimate grievances. This much may be conceded. After all, and for one thing, even the employees of the Court have found reason to complain about the manner in which the provisions of the salary standardization law on pay adjustments and position classification have been, or are being, implemented. Nonetheless, what needs to be borne in mind, trite though it may be, is that one wrong cannot be righted by another, and that redress, for even the most justifiable complaints, should not be sought through proscribed or illegal means. The belief in the

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righteousness of their cause, no matter how deeply and fervently held, gives the teachers concerned no license to abandon their duties, engage in unlawful activity, defy constituted authority and set a bad example to their students. Petitioners also assail the constitutionality of Memorandum Circular No. 6 issued by the Civil Service Commission. The resolution of the said issue is not really necessary in the case at bar. The argument of petitioners that the said circular was the basis of their liability is off tangent. As a general rule, even in the absence of express statutory prohibition like Memorandum Circular No. 6, public employees are denied the right to strike or engage in a work stoppage against a public employer.[13] The right of the sovereign to prohibit strikes or work stoppages by public employees was clearly recognized at common law. Indeed, it is frequently declared that modern rules which prohibit such strikes, either by statute or by judicial decision, simply incorporate or reassert the common law rule.[14] To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor.[15] In the absence of any express legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, employees in the public service may not engage in strikes, walkouts and temporary work stoppages like workers in the private sector.[16] On the issue of back wages, petitioners claim is premised on the allegation that their preventive suspension, as well as the immediate execution of the decision dismissing or suspending them, are illegal. These submissions are incorrect. Section 51 of Executive Order No. 292 provides that (t)he proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. Under the aforesaid provision, it is the nature of the charge against an officer or employee which determines whether he may be placed under preventive suspension. In the instant case, herein petitioners were charged by the Secretary of the DECS with grave misconduct, gross neglect of duty, gross violation of Civil Service law, rules and regulations, and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service and absence without official leave (AWOL), for joining the teachers mass actions held at Liwasang Bonifacio on September 17 to 21, 1990. Hence, on the basis of the charges against them, it was within the competence of the Secretary to place herein petitioners under preventive suspension. As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2), of Executive Order No. 292, thus: The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. Petitioners claim of denial of due process must also fail. The records of this case clearly show that they were given opportunity to refute the charges against them but they failed to avail themselves of the same. The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to seek reconsideration of the action or ruling complained of.[17] For as long as the parties were given the opportunity to be heard before judgment was rendered, the demands of due process were sufficiently met.[18] Having ruled that the preventive suspension of petitioners and the immediate execution of the DECS decision are in accordance with law, the next query is whether or not petitioners may be entitled to back wages. The issue regarding payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in our jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused the suspension and when the suspension is unjustified.[19] With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.

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However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the mass actions but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither did he file an application for leave covering such absences.[20] Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service.[21] However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension. The denial of salary to an employee during the period of his suspension, if he should later be found guilty, is proper because he had given ground for his suspension. It does not impair his constitutional rights because the Constitution itself allows suspension for cause as provided by law and the law provides that an employee may be suspended pending an investigation or by way of penalty.[22] Moreover, the general proposition is that a public official is not entitled to any compensation if he has not rendered any service. As he works, he shall earn. Since petitioners did not work during the period for which they are now claiming salaries, there can be no legal or equitable basis to order the payment of such salaries.[23] It is also noteworthy that in its resolutions, the Civil Service Commission expressly denied petitioners right to back wages. In the case of Yacia vs. City of Baguio,[24] the decision of the Commissioner of Civil Service ordering the dismissal of a government employee on the ground of dishonesty was immediately executed pending appeal, but, on appeal, the Civil Service Board of Appeals modified that penalty to a fine equivalent to six months pay. We ruled that the claim of an employee for back wages, for the period during which he was not allowed to work because of the execution of the decision of the Commissioner, should be denied. The appeal boards modified decision did not exonerate the employee nor did it affect the validity of his dismissal or separation from work pending appeal, as ordered by the Civil Service Commissioner. Such separation from work pending his appeal remained valid and effective until it was set aside and modified with the imposition of the lesser penalty by the appeals board. If the Civil Service Appeals Board had intended to grant him back salaries and to reduce his penalty to six months fine deductible from such unearned back salaries, the board could and should have so expressly stated in its decision. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED, but with the MODIFICATION that petitioner Rodolfo Mariano shall be given back wages without deduction or qualification from the time he was suspended until his actual reinstatement which, under prevailing jurisprudence, should not exceed five years. SO ORDERED. Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur. Narvasa, C.J., and Torres, Jr., J., on leave.

MIGUEL SINGSON, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and PHILIPPINE AIRLINES, INC. (PAL), respondents. DECISION PUNO, J.: Assailed in the petition for certiorari before us is the Resolution of the public respondent National Labor Relations Commission[1] (hereinafter NLRC) reversing the Decision of the Labor Arbiter[2] in NLRC-NCR Case No. 00-10-05750-91 finding the dismissal of petitioner Miguel Singson illegal and ordering his reinstatement. Petitioner filed a motion for reconsideration which was denied by the public respondent in an Order dated June 27, 1995. The antecedent facts reveal that petitioner Singson was employed by private respondent Philippine Airlines, Inc. (hereinafter PAL) as Traffic Representative Passenger, Handling Division. His duty consisted of checking in passengers and baggage for a particular flight. On June 7, 1991, petitioner was assigned to serve the check-in counter of Japan Air Lines (hereinafter JAL) for Flight 742. Among the passengers checked in by him was Ms. Lolita Kondo who was bound for Narita, Japan. After checking in, Ms. Kondo lodged a complaint

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alleging that petitioner required her to pay US $200.00 for alleged excess baggage without issuing any receipt. A confrontation took place where petitioner was asked by the security officer to empty his pockets. The dollars paid by Ms. Kondo were not found in his possession. However, when the lower panel of the check-in counter he was manning was searched, the sum of two hundred sixty five dollars (US $265) was found therein consisting of two (2) one hundred dollar bills, one (1) fifty dollar bill, one (1) ten dollar bill and one (1) five dollar bill. Petitioner was administratively charged and investigated by a committee formed by private respondent PAL.[3] In an affidavit presented to the investigators, Ms. Kondo declared that she was with three (3) Japanese friends when she checked in on June 7, 1991, for their flight to Narita, Japan. While in line, a man approached her and told her that she had excess baggage. She denied the allegation since the pieces of baggage did not only belong to her but also to her Japanese companions. The man did not believe that the Japanese were her companions and he charged that she just approached them at the airport. To settle the matter, he told her to give him two hundred dollars (US $200) and he apologized for their argument. She gave him one (1) one hundred dollar bill and two (2) fifty dollar bills or a total of two hundred dollars (US $200) as excess baggage fee. She placed the money at the side of his counter desk and he covered it with a piece of paper. He did not issue a receipt. She then reported the matter to JAL's representative. Ms. Kondo identified the employee who checked her in as the petitioner.[4] In his affidavit, petitioner admitted that he was the one who checked in Ms. Kondo and her Japanese companions. They checked in five (5) pieces of luggage which weighed 80 kilos and within the allowed limit for check-in baggage. He attached the claim checks to the jacket of their tickets, returned the tickets and passport to Ms. Kondo. He then heard an altercation involving a woman passenger with excess hand-carried baggage who was being charged for it; she was insisting she had paid for it in the counter but could not produce a receipt. The passenger turned out to be Ms. Kondo and she was accusing Cocoy Gabriel as the one who charged her for excess baggage. Mr. Gabriel at that time was assigned at the THAI Airways counter, hence, it was impossible that a passenger for a JAL flight would pay him US $200. Petitioner was talking to the JAL's representative when two PAL employees and Ms. Kondo approached them. He was told of Ms. Kondo's claim that she paid the excess baggage fee to him. Petitioner was surprised at the accusation since Ms. Kondo had no excess baggage when she checked in.[5] The investigation committee found petitioner guilty of the offense charged and recommended his dismissal. Private respondent PAL adopted the committee's recommendation and dismissed him from the service effective June 7, 1991.[6] On September 12, 1991, petitioner lodged a complaint against respondent PAL before the NLRC-NCR for illegal dismissal, attorney's fees and damages. The case was docketed as NLRC-NCR Case No. 00-10-0575091 and raffled off to then Labor Arbiter Raul T. Aquino. Aquino found the evidence adduced by private respondent PAL in terminating petitioner's employment insufficient. Aquino declared petitioner's dismissal illegal and ordered his reinstatement with backwages. Respondent PAL appealed the decision of the Labor Arbiter. On May 19, 1995, the Second Division of public respondent NLRC, composed of Commissioners Victoriano R. Calaycay, Rogelio I. Rayala and Raul T. Aquino as presiding commissioner, promulgated its Resolution reversing the decision of then Labor Arbiter Aquino and dismissing the complaint against respondent PAL. Petitioner filed on June 5, 1995, a motion for the reconsideration of the aforementioned Resolution and an Amended Motion for Reconsideration on June 15, 1995. Public respondent NLRC, thru the Second Division with only two commissioners taking part, namely, Commissioners Calaycay and Rayala, denied the motion. Hence, this petition for certiorari under Rule 65 of the Rules of Court where petitioner submits the following assignment of errors: "I. Public respondent NLRC acted with grave abuse of discretion and/or in excess of jurisdiction when the Hon. Raul T. Aquino, in his capacity as Presiding Commissioner of the Second Division of the NLRC and as a member thereof, participated actively in the promulgation of the aforesaid decision and in the consultation of the members thereof in reaching the conclusion before it was assigned to the ponente, Hon. Calaycay. "II. Public respondent NLRC gravely abused its discretion as in fact it exceeded its jurisdiction when it declared the affidavit of Lolita Kondo sufficient to declare his dismissal from employment legal even without any cross-examination during the investigation conducted by Philippine Air Lines. "III. Public respondent NLRC seriously and gravely erred amounting to abuse of discretion and/or in excess of its jurisdiction when it declared in the assailed decision that the quantum of evidence necessary to justify the supreme penalty of dismissal of the petitioner have been complied with, and in not imposing the burden of proving the legality of the dismissal of the petitioner." We find merit in this petition. Petitioner assails the Resolution of the public respondent NLRC on account of Commissioner Raul T. Aquino's participation in reviewing and reversing on appeal his own decision as labor arbiter in NLRC-NCR

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Case No. 00-10-05750-91. Respondents contend that Commissioner Aquino's failure to inhibit himself is a harmless error that will not infirm the subject resolution. We do not agree. In the case of Ang Tibay v. Court of Industrial Relations,[7] we laid down the requisites of procedural due process in administrative proceedings, to wit: (1) the right to a hearing, which includes the right to present one's case and submit evidence in support thereof; (2) the tribunal must consider the evidence presented; (3) the decision must have something to support itself; (4) the evidence must be substantial; (5) the decision must be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) the tribunal or body or any of its judges must act on its own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate; (7) the Board or body should, in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered. In addition, administrative due process includes (a) the right to notice, be it actual or constructive, of the institution of the proceedings that may affect a person's legal right; (b) reasonable opportunity to appear and defend his rights and to introduce witnesses and relevant evidence in his favor; (c) a tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction; and (d) a finding or decision by that tribunal supported by substantial evidence presented at the hearing or at least ascertained in the records or disclosed to the parties.[8] It is self-evident from the ruling case law that the officer who reviews a case on appeal should not be the same person whose decision is the subject of review. Thus, we have ruled that "the reviewing officer must perforce be other than the officer whose decision is under review."[9] In the case at bar, we hold that petitioner was denied due process when Commissioner Aquino participated, as presiding commissioner of the Second Division of the NLRC, in reviewing private respondent PAL's appeal. He was reviewing his own decision as a former labor arbiter. Under Rule VII, Section 2 (b) of the New Rules of Procedure of the NLRC,[10] each Division shall consist of one member from the public sector who shall act as the Presiding Commissioner and one member each from the workers and employers sectors, respectively. The composition of the Division guarantees equal representation and impartiality among its members. Thus, litigants are entitled to a review of three (3) commissioners who are impartial right from the start of the process of review. Commissioner Aquino can hardly be considered impartial since he was the arbiter who decided the case under review. He should have inhibited himself from any participation in this case. Prescinding from this premise, the May 19, 1995 resolution of the respondent NLRC is void for the Division that handed it down was not composed of three impartial commissioners. The infirmity of the resolution was not cured by the fact that the motion for reconsideration of the petitioner was denied by two commissioners and without the participation of Commissioner Aquino. The right of petitioner to an impartial review of his appeal starts from the time he filed his appeal. He is not only entitled to an impartial tribunal in the resolution of his motion for reconsideration. Moreover, his right is to an impartial review of three commissioners. The denial of petitioner's right to an impartial review of his appeal is not an innocuous error. It negated his right to due process. IN VIEW WHEREOF, the Resolution of the Second Division of the NLRC dated May 19, 1995 and its Order dated June 27, 1995 in NLRC-NCR Case No. 00-10-05750-91 is SET ASIDE. The case is remanded to the NLRC for further proceedings. No Costs. SO ORDERED. Regalado, (Chairman), Romero, and Torres, Jr., JJ., concur. Mendoza, J., No part, Daughter is in PAL Management.

PEPSI-COLA DISTRIBUTORS OF THE PHILIPPINES, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, THIRD DIVISION, HON. JOSE B. BOLISAY, EXECUTIVE LABOR ARBITER, REGIONAL ARBITRATION, BRANCH No. 1, SAN FERNANDO, LA UNION and PEDRO B. BATIN, respondents. DECISION FRANCISCO, J.: Before the Court is a petition for certiorari whereby petitioner Pepsi-Cola imputes grave abuse of discretion to public respondent National Labor Relations Commission (NLRC) in sustaining the findings of the Labor Arbiter that private respondent Pedro B. Batin was illegally dismissed from work. The facts are as follows: Sometime in 1978, private respondent was employed by petitioner as a salesman of its softdrink products. On March, 1985, he was promoted as Field Sales Manager assigned by petitioner at its Warehouse in Urdaneta, Pangasinan.[1] Three (3) years later, on May, 1988, private respondent received various memoranda from petitioner

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suspending him from work due to the following acts: - negligence in performance of duties particularly, his incomplete and improper accomplishment of Route Sales Report;[2] - failure to achieve sales commitments, and - unauthorized extension of credit (IOUs) to customers.[3] In two memoranda, private respondent was suspended for a total of 3 days (May 9, 10, and 24, 1988) due to said acts.[4] In a third memorandum, he was meted with another suspension for an unspecified duration effective May 25, 1988.[5] He was also notified to explain his side on the case.[6] Earlier, on May 23, 1988, the salesmen and helpers at the Urdaneta Warehouse signed a letter address to the Regional Sales Manager (Mr. Ernesto Cabuco) charging private respondent with the following acts and requesting that he be transferred to another station:[7] - sleeping inside the route truck during route rides instead of alighting from the vehicle to talk to customers; - obligating his men to pay for his meals and demanding their meal receipts for his own reimbursement from the company; - fictitiously purchasing 2,000 cases of petitioners assorted Pepsi products knowing that the price thereof will increase and later selling them at the adjusted price using petitioners resources for his own benefit; - inhuman treatment of the salesmen and helpers who are his subordinates. Later, on June 6, 1988, private respondent received from petitioner a notice of preventive suspension stating the above charges and placing him anew under preventive suspension status retroactive on the same date of May 25, 1988. This notice also informed him of the following: (A)dministrative investigation on your case shall be conducted at the Plant at 9:00 A.M. on June 10, 1988. It is understood that your failure and/or refusal to appear in said hearing shall be deemed as a waiver of your right to be heard, in which case, we shall decide on your case on the basis of available records/evidence.[8] Private respondent received another notice requiring him to answer the salesmens charges.[9] In response thereto, he submitted a position paper.[10] Administrative investigations conducted by petitioner on private respondents case showed that the following acts were allegedly committed by the latter:[11] a) grave abuse of authority, gross misbehavior and conduct unbecoming of a managerial employee - by requiring his subordinates to provide for his meals without reimbursing their expenses, sleeping instead of alighting from the truck during route rides and slapping, scolding and insulting his subordinates. b) conflict of interest and dishonesty by personally purchasing 2,000 cases of petitioners products knowing of the impending price increase - made it appear as purchased by Motolite Urdaneta as well as by a customer named Mamerto Urmoza - private respondent sold these products at the adjusted price for his profit. The investigation likewise showed that a disciplinary action of suspension was imposed on private respondent for neglecting his accountability, sales commitments and unauthorized IOUs.[12] These administrative charges were contained in a letter received by private respondent from the Regional Sales Manager which letter also contained a statement that his services were terminated effective October 7, 1988.[13] Arguing that his dismissal was illegal, private respondent sued petitioner before the Labor Arbiter praying for backwages, reinstatement, payment of 13th month pay and other claims. After hearing, the Labor Arbiter[14] rendered a decision dated February 26, 1991, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is hereby granted: 1) Declaring the termination of complainants services as illegal; 2) Ordering respondent Pepsi-Cola Distributors of the Philippines, Inc. to reinstate complainant Pedro B. Batin, even pending appeal, to his former position or substantially equivalent thereof, without loss of seniority rights, or, at the option of the respondent, to include complainant in the payroll with his positions corresponding present salary, in accordance with R.A. 6715; 3) Ordering said respondent to pay complainant Batin his backwages for one (1) years, (sic) together with his money claims and remuneration for the period of his suspension in excess of the 30-day limit, as follows: (a) Backwages (Oct. 7/88 to Oct. 6/89................................P66,000.00 (b) Backwages for the period of suspension beyond 30 days (June 25-Oct. 6/88)18,516.63

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(c) 13th month pay: 1988 - P5,500.00 1989 - 4,216.66................. (d) Unused vacation and sick leave pay of 73 days .................................

9,716.66

13,383.09

T O T A L . P107,616.38 4) Ordering the same respondent to pay complainant the money equivalent of his 12 sets of uniforms (6 sets for 1988 and 6 sets for 1989). SO ORDERED.[15] Aggrieved, petitioner, whose juridical personality ceased on July 24, 1989,[16] appealed to respondent NLRC which affirmed the Labor Arbiters decision.[17] Upon denial by the NLRC of its Motion for Reconsideration, petitioner comes to this Court via certiorari raising substantially two issues, namely: 1) Whether private respondent was denied due process before he was dismissed? 2) Whether the dismissal was premised on lawful cause? The Court will resolve both issues jointly. The validity of private respondents dismissal hinges on the satisfaction of the two substantive requirements for a lawful termination of an employees services, to wit:[18] (1) the employee was accorded due process, basic of which are opportunity to be heard and to defend himself,[19] and (2) the dismissal must be for any of the causes provided in Article 282 of the Labor Code.[20] On the first requirement, contrary to the findings of public respondents, evidence on record shows that private respondent was accorded due process before his dismissal on October 7, 1988. Administrative due process does not require an actual hearing. The essence thereof is simply an opportunity to be heard.[21] In this case, private respondent was not only given two opportunities to explain his case, but actually availed thereof by submitting his position paper.[22] Petitioner also complied with the twin procedural requirement of written notices to effect a valid dismissal viz: (1) a notice entitled preventive suspension was given to private respondent in accordance with Section 2 Rule XIV Book V of the Omnibus Rules[23] apprising him of the acts and omissions for which his dismissal is sought, and (2) a subsequent notice[24] after investigation informing private respondent of petitioners (employer) decision to dismiss him.[25] Respondent NLRCs ruling that that notice of preventive suspension does not satisfy the first written notice required [26] is erroneous. Although, as a general rule findings of facts of an administrative agency which has acquired expertise in the particular field of its endeavor, are accorded great weight on appeal, such rule cannot be applied with respect to the assailed findings on due process in this case. Rather, what applies is the recognized exception that if such findings are not supported by substantial evidence, the Court can make its own independent evaluation of the facts.[27] Upon scrutiny of the evidence on record, particularly the notice of preventive suspension, the ruling below that there was no due process before the dismissal cannot stand. In conformity with Article 277(b) of the Labor Code, the said notice specifically and particularly stated the acts leveled against private respondent and also informed him that a hearing is set on a specific time and date for him to explain his version. After its investigation, petitioner further complied with the mandate of Section 6, Rule XIV of Book V of the Omnibus Rules[28] by sending private respondent another notice enumerating the causes of his dismissal which notice categorically informed the latter of the employers decision to terminate his employment. With these notices, it cannot be said that petitioner failed to observe due process before dismissing private respondent. With respect to the second requirement, petitioner asserts that private respondent was dismissed on two grounds: (1) grave abuse of authority and gross misbehavior in allegedly accepting bribes, fighting and inflicting bodily harm to other employees, and (2) conflict of interest and dishonesty by allegedly making unauthorized extension of credit to customers and in creating fictitious sales of 2,000 cases of assorted Pepsi products. First, for the charge of misbehavior and abuse of authority, there is scant evidence on record which would show that private respondent is guilty thereof. Mere accusations and declarations by certain persons that the latter attempted to bribe or had engaged in fistfight, cannot support a finding that he indeed committed such acts. Unsubstantiated accusation without more is not synonymous with guilt. As for the acts of unauthorized extension of credit, private respondent adequately explained that the subject extension of credit or IOUs is a practice tolerated by the management, especially when they lag behind their sales objective, as in this case. Nonetheless, this questioned IOU was even promptly collected and no evidence was shown that petitioners business incurred damage. With respect to the charge of dishonesty and conflict of interest, evidence on record shows that private respondent purchased 2,000 cases of Pepsi products in his personal capacity, aware that the prices thereof (Pepsi products) will increase. However, he made it appear that said products was bought by a certain customer

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who later executed an affidavit denying such purchase. When the price of Pepsi products increased, private respondent sold as his own the 2000 cases at the adjusted price thereby accruing benefit to himself. In said fictitious sale, he utilized petitioners resources and company time for which the former was duly paid. By making such transaction, he also engaged himself in business competing with his employer and thus comes in conflict of interest against petitioner. He cannot serve himself and petitioner at the same time all at the expense of the latter. It would be unfair to compensate private respondent who does not devote his time and effort to his employer. The primary duty of the employee is to carry out his employers policies.[29] Moreover, the fictitious sale is an act of dishonesty. Route salesman, like private respondent, is a highly individualistic personnel who roam around doing field work of selling softdrinks, deal with customers practically on their own and are entrusted with large amounts of funds and properties of the employer.[30] There is a high degree of trust and confidence repose on them and when that confidence is breach, as in this case, proper disciplinary actions may be taken. The foregoing acts of dishonesty and conflict of interest justifies disciplinary sanctions provided it is commensurate with the gravity of the act. Under the factual milieu of this case a disciplinary sanction less punitive than the harsh penalty of dismissal meted on private respondent would suffice, considering his ten (10) years of service with petitioner and this being the first time he was charged with and investigated for such acts.[31] There is no evidence that he has committed infractions against the company before this incident, otherwise, he would not have been promoted in the first place. Moreover, private respondent was already penalized with suspensions in some of the infractions imputed to him in this case, like sleeping while on route rides, incomplete accomplishment of sales report and his failure to achieve sales commitments. He cannot again be penalized for those misconduct. The foregoing acts cannot be added to support the imposition of the ultimate penalty of dismissal which must be based on clear and not on ambiguous and ambivalent ground.[32] Private respondents preventive suspension since May 25, 1988 which extended beyond his dismissal on October 7, 1988, is more than the maximum period of 30 days set by Sec. 4, Rule XIV, Book V of the Omnibus Rules.[33] Preventive suspension cannot last indefinitely. In the case at bench, that long period of preventive suspension which lasted for more than a year where private respondent remained unemployed is herein considered as the commensurate penalty for the dishonest act and conflict of interest. Forthwith, the award of backwages will no longer have any basis. Nonetheless, for violating the maximum period of preventive suspension, a sanction should be imposed on petitioner.[34] WHEREFORE, premises considered, the decision of respondent NLRC is AFFIRMED in all other respect EXCEPT that the award of backwages is deleted and the award of thirteenth (13th) month pay should be recomputed based on the annual salary that private respondent actually received from petitioner for the years 1988 and 1989. For violating the rules on the imposition of the maximum period of preventive suspension, petitioner is also ordered to pay private respondent a penalty of three thousand pesos (P3,000.00). SO ORDERED. Narvasa, C.J. (Chairman), Davide, Jr., and Melo, JJ., concur. Panganiban, J., No Part. Daughter is management officer of Pepsi Cola head office, NY, USA.

PEDRO C. LAMEYRA, petitioner, vs. MAYOR GEORGE S. PANGILINAN, respondent. DECISION GONZAGA-REYES, J.: Before us is a petition for review under Rule 45 filed by Pedro C. Lameyra seeking to annul and set aside the resolution dated July 15, 1997 of the Court of Appeals which affirmed the resolution of the Civil Service Commission upholding the dismissal of petitioner from the government service as janitor/messenger of the local government of Famy, Laguna. Petitioners basic contention is that he was unlawfully terminated from the service without just cause and as an act of political harassment by the Municipal Mayor of Famy, Laguna. Pedro C. Lameyra was a janitor/messenger in the Municipal Hall of Famy, Laguna. He was appointed as such on February 2, 1988 under temporary status and was given a permanent appointment on January 1, 1989 to the same position by then Municipal Mayor Melquiadez Acomular. Mayor Acomular was defeated in the last election for the mayoralty post by respondent Mayor George S. Pangilinan. On August 21, 1995, petitioner Lameyra received a letter from respondent Mayor Pangilinan informing him that he is dropped from the roll of employees of the local government unit of Famy, Laguna pursuant to Memorandum Circular No. 12, Series of 1994 of the Civil Service Commission due to the following reasons: 1. Insubordination; 2. AWOL. Petitioner filed a notice of appeal with the Civil Service Commission alleging that he was a permanent employee and that he was terminated without prior written notice of the charges and without investigation and hearing, in violation of his security of tenure and due process. He alleged that the act of Mayor Pangilinan was an act of political vengeance as he was publicly known to have voted for his political rival during the May 8, 1995 election.

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Mayor Pangilinan, in his comment stated as follows: "1.........That the dropping of appellant from the payroll was pursuant to Memorandum Circular No. 12, series of 1994, dated March 10, 1994, of this Honorable Commission due to insubordination and for being absent without official leave, and was resorted to when appellant failed to justify his continued leave of absence without official leave; "2.........The following circumstances led to the dropping of the name of appellant from the payroll, to wit: "3.........On May 31, 1995, undersigned issued a memorandum requiring all heads of offices and employees of local, provincial and municipal agencies to fill up and accomplish the daily time log book pursuant to paragraph 3, Civil Service Rules XV, Executive Order No. 5, series of 1990, with the warning that falsification of time records will subject the offender to summary removal from the service; xerox copy of said memorandum showing that appellant was duly informed of the same is hereto attached as Annex "A"; Korte "4.........That appellant despite knowledge of said memorandum deliberately failed and refused to comply with the said memorandum and since July 6, 1995 has not been reporting for work; hereto attached as Annex "B is a xerox copy of the certification issued by Mr. Benito L. Vicencio, Personnel Officer, attesting to such fact; that appellants failure to comply with the May 31, 1995 memorandum constitute insubordination and his continued absence without official leave was deemed and considered as abandonment of employment. "5.........That even prior to the issuance of said May 31, 1995 memorandum, Mr. Benito L. Vicencio on January 19, 1995, has reported that appellant was always late in coming to work in violation of Memorandum Circular No. 45, series of 1994 of this Honorable Commission; hereto attached as Annex "C" and made integral part hereof is xerox copy of said report; "6.........That despite several warnings, appellant deliberately failed to comply with said May 31, 1995 memorandum and likewise, failed to see undersigned to explain his side; moreover, did not even attempt to justify his absence without official leave and continuously failed to report for work; hence, his failure to report for work was deemed and considered as abandonment; "7.........Worse, appellant was found to have committed falsification of public document in accomplishing his daily time record for December, 1994; hence, as the disciplining authority, on August 1, 1995, I filed a case for falsification of public document against appellant before the Honorable Deputy Ombudsman for Luzon; xerox copy of which is attached as Annex "D" and made integral part hereof; "8.........That in view of the foregoing, appellant may not argue that he was denied due process."[1] Sclaw The Civil Service Commission in Resolution No. 96-0828 dated February 6, 1996 dismissed the appeal and affirmed the action of the Municipal Mayor in dropping him from the roll of employees for absence without leave; the Commission ruled: "Undisputedly, Lameyra was absent for the period from July 6, 1995 to August 6, 1995 and that he has not submitted any proof that he actually filed an application for leave. Neither did he present an approved leave application concerning said absences. On the one hand, Benito Vicencio, Personnel Officer/Human Resources Management Assistant, Famy, Laguna, certified that Lameyra did not report for work during the said period. In sum, there is sufficient ground to support the action of the Municipal Government of Famy in dropping Lameyra from the service."[2] Lameyra filed a motion for reconsideration alleging that he had not earlier been furnished copy of Mayor Pangilinans comment and disputing the version of Mayor Pangilinan that he refused to report for work. He claimed that upon advice of the Regional office of the Civil Service Commission in Sta. Cruz, Laguna, he reported for work at the office of the Vice Mayor Constancio Fernandez, as he was not allowed by the Personnel Officer, Benito Vicencio, to sign his name in the log book. Attached to his motion was an Affidavit of Vice-Mayor Constancio A. Fernandez attesting to the fact that petitioner was reporting to his office upon advice of the Civil Service Office at Sta. Cruz, Laguna, and that petitioner was not allowed to sign the log book at the Office of the Mayor. Also submitted with the motion for reconsideration was an affidavit of a co-employee, Remegio Jamilan, and petitioners own sworn statement controverting the allegation of Mayor Pangilinan that he refused to report for work or sign the log book. In its Resolution No. 970558, dated January 28, 1997, the Civil Service Commission denied petitioners motion for reconsideration, stating as follows:

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"The first ground of this Motion for Reconsideration is the existence of a new evidence which would materially affect the decision in question. Sclex Movants claim that he was reporting for duty at the office of the Vice Mayor deserves scant consideration. On the contrary the Office of the Personnel Officer, Municipality of Famy, Laguna, certified that Lameyra has not reported for work for the period from July 6, 1995 to August 6, 1995. While it may be true that he was then within the premises of the Municipal Office, the fact remains that he was not officially reporting for duty as Janitor/Messenger (CSC Resolution No. 94-4822, September 1, 1994). As to the other grounds alleged in the Motion for Reconsideration, the same are mere reiterations of the arguments raised in his appeal, which have been thoroughly discussed in the resolution now sought to be reconsidered."[3] Petitioner filed a petition for review before the Court of Appeals, which denied the same. The Court stated that the Commission correctly ruled on the issues raised before it, and rejected the claim of petitioner that he was denied his right to due process, as he had the opportunity to be heard on his motion for reconsideration. Moreover, the Commissions findings are supported by substantial evidence. Motion for reconsideration of the said decision having been denied by the Court of Appeals, petitioner comes before us alleging that the Court of Appeals committed an error of law: "A.BY MISAPPLYING THE CASE OF RUBENECIA V CSC (244 SCRA 652) TO PETITIONERS CASE; "B..BY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS; "C..BY CONCLUDING IN EFFECT THAT PETITIONER ABANDONED HIS EMPLOYMENT UNDER UNDISPUTED FACTS."[4] and committed grave abuse of discretion in the appreciation of facts. Essentially, petitioner claims that he was not given due process before Mayor Pangilinan terminated his employment, and that the Civil Service Commission erred in refusing to consider the new evidence submitted with petitioners motion for reconsideration. Hence, the Court of Appeals erred in evading the factual issues raised before it by petitioner. Respondent Mayor filed comment, and pointed out that clearly the basis for the petitioners separation is not abandonment but absence without official leave, and that the affidavits which he submitted before the Civil Service Commission cannot be considered "newly discovered evidence" as they were all along readily available to him" and were no longer admissible at a late stage to set aside the judgment. Respondent maintains that the Civil Service Commission and the Court of Appeals correctly ruled that petitioner was properly terminated for absence without official leave. We find merit in the instant petition. Xlaw Civil Service Memorandum Circular No. 12 Series of 1994 provides as follows: "2.1 Absence without approved leave a. An officer or employee who is continuously absent without approved leave (AWOL) for at least thirty (30) calendar days shall be separated from the service or dropped from the rolls without prior notice. He shall, however, be informed of his separation from the service not later than five (5) days from its effectivity which shall be sent to the address appearing in his 201 files.[5] It is clear from a reading of the above provision that the no prior notice is required to drop from the rolls an employee who has been continuously absent without approved leave (AWOL) for at least thirty (30) calendar days. It appears that solely on the basis of the certification of the Personnel Officer/Human Resources Management Assistant Benito Vicencio to the effect that petitioner did not report for work for the period from July 6, 1995 to August 6, 1995, and the undisputed fact that he has not submitted any proof that he actually filed an application for leave nor presented any approved leave application for the said period, petitioners termination from the service was upheld by the Civil Service Commission and the Court of Appeals. However, petitioner contests the finding that he was absent at all. He claims that he reported for work but was prevented from signing the log book by the very officer, Benito Vicencio, who certified that he did not report for work on the dates in question. He alleges in his petition and insists in his reply, that he was not furnished a copy of Mayor Pangilinans comment, and was able to secure a copy only after receiving a copy of the Resolution of the Civil Service Commission upholding the termination of his service. This allegation of petitioner, which was raised even in the Court of Appeals[6] was not disputed by respondent Pangilinan in his Comment to the Petition[7] nor in his Comment to the Petition filed in the Court of Appeals.[8] Accordingly, the first opportunity that petitioner had to contest the sufficiency of the evidence to support his dismissal was when he filed his motion for reconsideration from the Resolution of the Civil Service Commission dated February 6, 1996. The three sworn statements which were annexes to said motion directly controverted Vicencio's certification that he

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was absent without leave, cannot be considered new evidence belatedly submitted as there was no notice and hearing when he was dropped from the rolls. Considering that one of the affiants is Vice-Mayor Fernandez, whose acts as a public official are also entitled to a presumption of regularity in the performance of duty, it would be in compliance with the requirements of due process to have given said sworn statement due consideration in view of the circumstances prevailing in this case. This is in consonance with the respondents own theory that petitioner was afforded his right to be heard when he filed his motion for reconsideration in the Civil Service Commission.[9] Jjjuris While it is settled doctrine that findings of fact of an administrative agency must be respected and this Court should not be tasked to weigh once more the evidence submitted before the administrative body, it is axiomatic that such findings of fact should be supported by substantial evidence. We are not convinced that the certification of the personnel officer that petitioner did not report for work from July 6, 1995 to August 6, 1995 constitutes such substantial evidence in light of the petitioners submission that said personnel officer precisely prevented him from signing the log book, that he has been replaced by one Leynes in July, 1995, and that he has been asked to submit his resignation which he refused to do. Under these circumstances, it is believed that, in equity, and in proper compliance with the requirements of due process, petitioner should be given a last full opportunity to prove his contention that the termination of his services was illegal. WHEREFORE, the judgment appealed from is reversed and set aside. Let the case be remanded to the Civil Service Commission for further proceedings in accordance with the tenor of this decision. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur

CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY, respondent. DECISION PARDO, J.: The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision of the Court of Appeals ruling that respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null and void the Civil Service Commissions resolution dismissing him from the service as Vocational School Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar. The facts may be succinctly related as follows: On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism.[1] After the fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City, found a prima facie case against respondent, and, on March 5, 1996, issued the corresponding formal charge against him.[2] Accordingly, the Civil Service Commission conducted a formal investigation, and, on January 28, 1997, the Civil Service Commission promulgated its resolution finding no substantial evidence to support the charge of habitual drunkenness and misconduct. However, the Civil Service Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service.[3] On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration;[4] however, on May 20, 1997, the Civil Service Commission denied the motion.[5] On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action for certiorari with preliminary injunction[6] to set aside the Civil Service Commissions resolutions. On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service Commission, ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism. The Court further held that it is the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act.[7] Hence, this appeal. On November 17, 1998, we required respondent to comment on the petition within ten (10) days from notice.[8] On December 11, 1998, respondent filed his comment We give due course to the petition. The basic issue raised is the scope of the ban on nepotism. We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from the service. The law defines nepotism[9] as follows:

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Sec. 59. Nepotism. (1) All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited. As used in this Section, the word relative and members of the family referred to are those related within the third degree either of consanguinity or of affinity. (2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission. Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) appointing authority; b) recommending authority; c) chief of the bureau or office, and d) person exercising immediate supervision over the appointee. Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. Mr. Daclag's authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr. Daclags immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school. On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual utility worker. However, it was respondent Dacoycoy who certified that funds are available for the proposed appointment of Rito Dacoycoy and even rated his performance as very satisfactory. On the other hand, his son Ped stated in his position description form that his father was his next higher supervisor. The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondents two sons and placed them under respondents immediate supervision serving as driver and utility worker of the school. Both positions are career positions. To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism. At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him.[10] He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent[11] as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service.[12] Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government.[13] Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court.[14] By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office[15] and not included are cases where the penalty imposed is suspension for not more then thirty (30) days or fine in an amount not exceeding thirty days salary[16] or when the respondent is exonerated of the charges, there is no occasion for appeal.[17] In other words, we overrule prior decisions

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holding that the Civil Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges enunciated in Paredes v. Civil Service Commission;[18] Mendez v. Civil Service Commission;[19] Magpale v. Civil Service Commission;[20] Navarro v. Civil Service Commission and Export Processing Zone Authority[21] and more recently Del Castillo v. Civil Service Commission[22] The Court of Appeals reliance on Debulgado vs. Civil Service Commission,[23] to support its ruling is misplaced. The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative. Precisely, in Debulgado, the Court emphasized that Section 59 means exactly what it says in plain and ordinary language: x x x The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there.[24] Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we stressed that [T]the basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one.[25] The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive.[26] If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head. As we said in an earlier case what we need now is not only to punish the wrongdoers or reward the outstanding civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law.[27] WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G.R. SP No. 44711. ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Kapunan, Panganiban, Purisima, Buena, Gonzaga-Reyes, and YnaresSantiago, JJ., concur. Romero, J., please see dissenting opinion. Melo, J., concurs and dissent in separate opinion. Puno, J., please see concurring opinion. Vitug, and Quisumbing, JJ., join the concurring and dissenting opinion of Justice Melo. Mendoza, J., join the concurring opinion of Justice Puno.

EDUARDO M. COJUANGCO JR., petitioner, vs. COURT OF APPEALS, THE PHILIPPINE CHARITY SWEEPSTAKES OFFICE and FERNANDO O. CARRASCOSO JR., respondents. PANGANIBAN, J.: To hold public officers personally liable for moral and exemplary damages and for attorney's fees for acts done in the performance of official functions, the plaintiff must prove that these officers exhibited acts characterized by evident bad faith, malice, or gross negligence. But even if their acts had not been so tainted, public officers may still be held liable for nominal damages if they had violated the plaintiff's constitutional rights. The Case 1 Before us is a Petition for Review under Rule 45 of the Rules of Court seeking to set aside the Decision of the 2 Court of Appeals in CA-GR CV No. 39252 promulgated on September 9, 1994. The assailed Decision reversed the Regional Trial Court (RTC) of Manila, Branch 2, in Civil Case No. 91-55873, which disposed of the 3 controversy in favor of herein petitioner in the following manner: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering them, jointly and severally the following: ON THE FIRST CAUSE OF ACTION 1. To pay P143,000.00 plus interest thereon from March 26, 1986 until complete payment thereof; 2. To pay P28,000.00 plus interest thereon [from] June 8, 1986 until complete payment thereof; 3. To pay P142,700.00 plus interest thereon from July 10, 1987 until complete payment thereof; 4. To pay P70,000.00 plus interest thereon from February 1, 1987 until complete payment thereof;

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5. To pay P140,000.00 plus interest thereon from March 22, 1987 until complete payment thereof; 6. To pay P28,000.00 plus interest thereon from April 26, 1987 until complete payment thereof; 7. To pay P14,000.00 plus interest thereon from May 17, 1987 until complete payment thereof; 8. To pay P140,000.00 plus interest thereon from August 9, 1987 until complete payment thereof; 9. To pay P174,000.00 plus interest thereon from December 13, 1987 until complete payment thereof; 10. To pay P140,000.00 plus interest thereon from September 18, 1988 until complete payment thereof; 11. All income derived from the foregoing amounts. ON THE SECOND CAUSE OF ACTION Ordering defendant Fernando O. Carrascoso the following: 1. To pay moral damages in the amount of One Hundred Thousand Pesos (P100,000.00); 2. To pay exemplary damages in the amount of Twenty Thousand Pesos (P20,000.00); 3. To pay attorney's fees in the amount of Thirty Thousand Pesos (P30,000.00); 4. To pay the costs of suit. The counterclaim is ordered dismissed, for lack of merit. SO ORDERED. 4 In a Resolution dated March 7, 1995, Respondent Court denied petitioner's Motion for Reconsideration. The Facts The following is the Court of Appeals' undisputed narration of the facts: Plaintiff [herein petitioner] is a known businessman-sportsman owning several racehorses which he entered in the sweepstakes races between the periods covering March 6, 1986 to September 18, 1989. Several of his horses won the races on various dates, landing first, second or third places, respectively, and winning prizes together with the 30% due for trainer/grooms which are itemized as follows:

Date

Place Winner Grooms 1st 2nd 1st 1st 1st 3rd 1st 1st 1st 1st

3/25/86 6/8/86 7/10/86 2/1/87 3/22/87 4/26/87 5/17/87 8/8/87 12/13/87 9/18/88

Stake Horse Prize Claims PCSO Hansuyen Stronghold Kahala Devil's Brew Time to Explode Stormy Petril Starring Role Star Studded Charade Hair Trigger TOTAL

Racewinning Training 200,000.00 40,000.00 200,000.00 100,000.00 200,000.00 40,000.00 20,000.00 200,000.00 250,000.00 200,000.00 1,450,000.00

30% Due Withheld by 57,000.00 12,000.00 57,300.00 30,000.00 60,000.00 12,000.00 6,000.00 60,000.00 75,000.00 60,000.00 4,293,000.00

[Herein petitioner] sent letters of demand (Exhibits "A," dated July 3, 1986; "B" dated August 18, 1986; and "C," dated September 11, 1990) to the defendants [herein private respondents] for the collection of the prizes due him. And [herein private respondents] consistently replied. (Exhibits 2 and 3) that the demanded prizes are being withheld on advice of Commissioner Ramon A. Diaz of the Presidential Commission on Good Government. Finally on January 30, 1991; this case was filed before the Regional Trial Court of Manila. But before receipt of the summons on February 7, Presidential Commission on Good Government advi[s]ed defendants that "if poses no more objection to the remittance of the prize winnings" (Exh. 6) to [herein petitioner]. Immediately, this was 5 communicated to Atty. Estelito Mendoza by [Private Respondent Fernando] Carrascoso [Jr.]. As culled from the pleadings of the parties, Atty. Estelito P. Mendoza, petitioner's counsel, refused to accept the prizes at this point, reasoning that the matter had already been brought to court. Ruling of the Trial Court The trial court ruled that Respondent Philippine Charity Sweepstakes Office (PCSO) and its then chairman, Respondent Fernando O. Carrascoso Jr., had no authority to withhold the subject racehorse winnings of petitioner, since no writ of sequestration therefor had been issued by the Presidential Commission on Good Government (PCGG). It held that it was Carrascoso's unwarranted personal initiative not to release the prizes. Having been a previous longtime associate of petitioner in his horse racing and breeding activities, he had supposedly been aware that petitioner's winning horses were not ill-gotten. The trial court held that, by not paying the winnings, Carrascoso had acted in bad faith amounting to the persecution and harassment of 6 petitioner and his family. It thus ordered the PCSO and Carrascoso to pay in solidum petitioner's claimed

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winnings plus interests. It further ordered Carrascoso to pay moral and exemplary damages, attorney's fees and costs of suit.1wphi1.nt While the case was pending with the Court of Appeals, petitioner moved for the partial execution pending appeal of the RTC judgment, praying for the payment of the principal amount of his prize winnings. Private respondents posed no objection thereto and manifested their readiness to release the amount prayed for. Hence, the trial 7 court issued on February 14, 1992, an Order for the issuance of a writ of execution in the amount of P1,020,700. Accordingly, on May 20, 1992, Respondent PCSO delivered the amount to petitioner. Ruling of the Court of Appeals 8 Before the appellate court, herein private respondents assigned the following errors: I THE COURT A QUO ERRED IN HOLDING THAT DEFENDANTS-APPELLANTS ACTED IN BAD FAITH IN WITHHOLDING PLAINTIFF-APPELLEE['S] PRIZE[S]; II THE COURT A QUO ERRED [IN] AWARDING MORAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEY'S FEES IN FAVOR OF PLAINTIFF-APPELLEE. In reversing the trial court's finding of bad faith on the part of Carrascoso, the Court of Appeals held that the former PCSO chairman was merely carrying out the instruction of the PCGG in regard to the prize winnings of petitioner. It noted that, at the time, the scope of the sequestration of the properties of former President 9 Ferdinand E. Marcos and his cronies was not well-defined. Respondent Court explained: . . . Under those equivocalities, defendant Carrascoso could not be faulted in asking further instructions from the PCGG, the official government agency on the matter, on what to do with the prize winnings of the [petitioner], and more so, to obey the instructions subsequently given. The actions taken may be a hard blow on [petitioner] but defendant Carrascoso had no alternative. It was the safest he could do in order to protect public interest, act within the powers of his position and serve the public demands then prevailing. More importantly, it was the surest way to avoid a possible complaint for neglect of duty or misfeasance of office or an anti-graft case against him. The Court of Appeals also noted that the following actuations of Carrascoso negated bad faith: (1) he promptly replied to petitioner's demand for the release of his prizes, citing PCGG's instruction to withhold payment thereof; (2) upon PCGG's subsequent advice to release petitioner's winnings, he immediately informed petitioner thereof; and (3) he interposed no objection to the partial execution, pending appeal, of the RTC decision. Respondent 10 Court finally disposed as follows: IN VIEW OF ALL THE FOREGOING, the judgment appealed from is REVERSED and SET ASIDE and a new one entered DISMISSING this case. No pronouncement as to costs. On September 29, 1994, petitioner filed a Motion for Reconsideration, which was denied on March 7, 1995. 11 Hence, this petition. Issues Petitioner asks this Court to resolve the following issues: a. Whether the Court of Appeals had jurisdiction over the appeal of respondent Philippine Charity Sweepstakes Office (PCSO); b. Whether the appeal of respondent Carrascoso, Jr. should have been dismissed for his failure to file an appeal brief; c. Whether the Court of Appeals had jurisdiction to review and reverse the judgment on a cause of action which was not appealed from by the respondents; 12 d. Whether the award for damages against respondent Carrascoso, Jr. is warranted by evidence and the law. Being related, the first two issues will be discussed jointly. The Court's Ruling The petition is partly meritorious. First and Second Issues: Effect of PCSO's Appeal Brief Petitioner contends that the appeal filed by the PCSO before Respondent Court of Appeals should have been dismissed outright. The appealed RTC decision ruled on two causes of action: (1) a judgment against both PCSO and Carrascoso to jointly and severally pay petitioner his winnings plus interest and income; and (2) a judgment against Carrascoso alone for moral and exemplary damages, as well as attorney's fees and costs. The PCSO, through the Office of the Government Corporate Counsel (OGCC), appealed only the second item: "the impropriety of the award of damages . . . ." This appealed portion, however, condemned only Carrascoso, not the PCSO. Technically, petitioner claims, PCSO could not have appealed the second portion of the RTC Decision which ruled against Carrascoso only, and not against the government corporation. Petitioner further avers that Carrascoso failed to file his own appeal brief; accordingly, his appeal should have,

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been dismissed. The PCSO brief, he submits, could not have inured to the benefit of Carrascoso, because the latter was no longer chairman of that office at the time the brief was filed and, hence, could no longer be represented by the OGCC. On the other hand, respondents aver that the withholding of petitioner's racehorse winnings by Respondent Carrascoso occurred during the latter's incumbency as PCSO chairman. According to him, he had honestly believed that it was within the scope of his authority not to release said winnings, in view of then President Corazon C. Aquino's Executive Order No. 2 (EO 2), in which she decreed the following: (1) Freeze all assets and properties in the Philippines in which former President Marcos and/or his wife, Mrs. Imelda Romualdez Marcos, their close friends, subordinates, business associates, dummies, agents, or nominees have any interest or participation; (2) Prohibit any person from transferring, conveying, encumbering or otherwise depleting or concealing such assets and properties or from assisting or taking part in their transfer, encumbrance, concealment, or dissipation, under pain of such penalties as are prescribed by law. Moreover, he argues that he sought the advice of the PCGG as to the nature of the subject racehorse winnings, and he was told that they were part of petitioner's sequestered properties. Under these circumstances and in his belief that said winnings were fruits of petitioner's ill-gotten properties, he deemed it his duty to withhold them. The chairman of the PCSO, he adds, is empowered by law to order the withholding of prize winnings. The representation of the OGCC on behalf of the PCSO and Mr. Carrascoso is pursuant to its basic function to "act as the principal law office of all government-owned or controlled corporations, their subsidiaries, other corporate offsprings and government acquired asset corporations and . . . [to] exercise control and supervision over all legal departments or divisions maintained separately and such powers and functions as are now or may 13 hereafter be provided by law." The OGCC was therefore duty-bound to defend the PCSO because the latter, 14 under its charter, is a government-owned corporation. The government counsel's representation extends to 15 the concerned government functionary's officers when the issue involves the latter's official acts or duties. Granting that upon his separation from the government, Carrascoso ceased to be entitled to the legal services of the government corporate counsel, this development does not automatically revoke or render ineffective his notice of appeal of the trial court's Decision. The filing of an appellant's brief is not an absolute requirement for 16 the perfection of an appeal. Besides, when noncompliance with the Rules of Court is not intended for delay or does not prejudice the adverse party, the dismissal of an appeal on a mere technicality may be stayed and the 17 court may, at its sound discretion, exercise its equity jurisdiction. The emerging trend in our jurisprudence is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause, free from 18 the constraints of technicalities. What is important is that Respondent Carrascoso filed his notice of appeal on time and that his counsel before 19 the lower court, who was presumed to have continued representing him on appeal, had filed an appeal brief on his behalf. The Manifestation of Carrascoso before the Court of Appeals that he intended to hire the services of another counsel and to file his own brief did not ipso facto effect a change of counsel under the existing rules of procedure. The former counsel must first file a formal petition withdrawing his appearance with the client's consent, and the newly appointed attorney should formally enter his appearance before the appellate court with 20 notice to the adverse party. But other than Carrascoso's manifestation of his intention to hire a counsel of his own, the requisites for a change of counsel were not fully complied with. Nevertheless, as stated earlier, even an effective change of attorney will not abrogate the pleadings filed before the court by the former counsel. All in all, we hold that the appellate court committed no reversible error in not dismissing the appeal, since this matter was addressed to its sound discretion, and since such discretion exercised reasonably in accordance with the doctrine that cases should, as much as possible, be decided on their merits. Third Issue: Scope of the Appeal Before Respondent Court Petitioner is correct in asserting that the entire RTC judgment was not appealed to Respondent Court of Appeals. The errors assigned in the appellants' Brief, as quoted earlier, attacked only the trial court's (1) conclusion that "defendants-appellants acted in bad faith" and (2) award of damages in favor of herein petitioner. In short, only those parts relating to the second cause of action could be reviewed by the CA. Respondent Court could not therefore reverse and set aside the RTC Decision in its entirety and dismiss the original Complaint without trampling upon the rights that had accrued to the petitioner from the unappealed portion of the Decision. It is well-settled that only the errors assigned and properly argued in the brief, and those 21 necessarily related thereto, may be considered by the appellate court in resolving an appeal in a civil case. The appellate court has no power to resolve unassigned errors, except those that affect the court's jurisdiction 22 over the subject matter and those that are plain or clerical errors. Having said that, we note, however, that Respondent Court in its Decision effectively recognized the confines of the appeal, as it stated at the outset that "this appeal shall be limited to the damages awarded in the [RTC]

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decision other than the claims for race winning prizes." The dispositive portion of the Decision must be understood together with the aforequoted statement that categorically defined the scope of Respondent Court's review. Consequently, what the assailed Decision "reversed and set aside" was only that part of the appealed judgment finding bad faith on the part of herein Private Respondent Carrascoso and awarding damages to herein petitioner. It did not annul the trial court's order for Respondent PCSO to pay Petitioner Cojuangco his racehorse winnings, because this Order had never been assigned as an error sought to be corrected. On the contrary, Respondent PCSO had probably never intended to further object to the payment, as it so 24 25 manifested before the trial court in answer to Petitioner Cojuangco's Motion for the partial execution of the judgment. In fact, on May 20, 1992, PCSO willingly and readily paid the petitioner the principal amount of 26 P1,020,700 in accordance with the writ of execution issued by the trial court on February 14, 1992. Obviously and plainly, the RTC judgment, insofar as it related to the first cause of action, had become final and no longer subject to appeal. In any event, the Court of Appeals' discussion regarding the indispensability of the PCGG as a party-litigant to the instant case was not pivotal to its reversal of the appealed trial court Decision. It merely mentioned that the non-joinder of the PCGG made the Complaint vulnerable or susceptible to dismissal. It did not rule that it was the very ground, or at least one of the legal grounds, it relied upon in setting aside the appealed judgment. It could not have legally done so anyway, because the PCGG's role in the controversy, if any, had never been an issue before the trial court. Well-settled is the doctrine that no question, issue or argument will be entertained on 27 appeal unless it has been raised in the court a quo. The aforementioned discussion should therefore be construed only in light of the previous paragraphs relating to Respondent Carrascoso's good faith which, the appellate court surmised, was indicated by his reliance on PCGG's statements that the subject prize winnings of Petitioner Cojuangco were part of the sequestered properties. In other words, Respondent Court's view that the non-inclusion of PCGG as a party made the Complaint dismissible was a mere aside that did not prejudice petitioner. Fourth Issue: Damages Petitioner insists that the Court of Appeals erred in reversing the trial court's finding that Respondent Carrascoso acted in bad faith in withholding his winnings. We do not think so. Bad faith does not simply connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty due to some motive or interest or ill 28 will that partakes of the nature of fraud. We do not believe that the above judicially settled nature of bad faith characterized the questioned acts of Respondent Carrascoso. On the contrary, we believe that there is sufficient evidence on record to support 29 Respondent Court's conclusion that he did not act in bad faith. It reasoned, and we quote with approval: A close examination of the June 10, 1986 letter of defendant Carrascoso to Jovito Salonga, then Chairman of the Presidential Commission on Good Government, readily display uncertainties in the mind of Chairman Carrascoso as to the extent of the sequestration against the properties of the plaintiff. In the said letter (Exhibit "1") the first prize for the March 16, 1986 draw and the second prize for the June 8, 1986 draw, were, in the meantime, being withheld to "avoid any possible violation of your sequestration order on the matter" because while he is aware of the sequestration order issued against the properties of defendant Eduardo Cojuangco, he is not aware of the extent and coverage thereof. It was for that reason that, in the same letter, defendant Carrascoso requested for a clarification whether the prizes are covered by the order and if it is in the affirmative, for instructions on the proper disposal of the two (2) prizes taking into account the shares of the trainer and the groom. Correspondingly, in a letter dated June 13, 1986 (Exhibit 2) PCGG Commissioner Ramon A. Diaz authorized the payment to the trainer and the groom but instructed the withholding of the amounts due plaintiff Eduardo Cojuangco. This piece of evidence should be understood and appreciated in the light of the circumstances prevailing at the time. PCGG was just a newly born legal creation and "sequestration" was a novel remedy which even legal luminaries were not sure as to the actual procedure, the correct approach and the manner how the powers of the said newly created office should be exercised and the remedy of sequestration properly implemented without violating due process of law. To the mind of their newly installed power, the immediate concern is to take over and freeze all properties of former President Ferdinand E. Marcos, his immediate families, close associates and cronies. There is no denying that plaintiff is a very close political and business associate of the former President. Under those equivocalities, defendant Carrascoso could not be faulted in asking further instructions from the PCGG, the official government agency on the matter, on what to do with the prize winnings of the plaintiff, and more so, to obey the instructions subsequently given. The actions taken may be a hard blow on plaintiff but defendant Carrascoso had no alternative. It was the safest he could do in order to protect public interest, act within the powers of his position and serve the public demands then prevailing. More importantly, it was the surest way to avoid a possible complaint for neglect of duty or misfeasance of office or an

23

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anti-graft case against him. xxx xxx xxx Moreover, the finding of bad faith against defendant Carrascoso is overshadowed by the evidences showing his good faith. He was just recently appointed chairman of the PCGG when he received the first demand for the collection of the prize for the March 16, 1986 race which he promptly answered saying he was under instructions by the PCGG to withhold such payment. But the moment he received the go signal from the PCGG that the prize winnings of plaintiff Cojuangco could already be released, he immediately informed the latter thereof, interposed no objection to the execution pending appeal relative thereto, in fact, actually paid off all the winnings due the plaintiff. . . . Carrascoso's decision to withhold petitioner's winnings could not be characterized as arbitrary or whimsical, or even the product of ill will or malice. He had particularly sought from PCGG a clarification of the extent and 30 coverage of the sequestration order issued against the properties of petitioner. He had acted upon the PCGG's statement that the subject prizes were part of those covered by the sequestration order and its 31 instruction "to hold in a proper bank deposits [sic] earning interest the amount due Mr. Cojuangco." Besides, EO 2 had just been issued by then President Aquino," freez[ing] all assets and properties in the Philippines [of] former President Marcos and/or his wife, . . . their close friends, subordinates, business associates . . ."; and enjoining the "transfer, encumbrance, concealment, or dissipation [thereof], under pain of such penalties as prescribed by law." It cannot, therefore, be said that Respondent Carrascoso, who relied upon these issuances, acted with malice or bad faith. The extant rule is that a public officer shall not be liable by way of moral and exemplary damages for acts done 32 in the performance of official duties, unless there is a clear showing of bad faith, malice or gross negligence. Attorney's fees and expenses of litigation cannot be imposed either, in the absence of a clear showing of any of 33 the grounds provided therefor under the Civil Code. The trial court's award of these kinds of damages must perforce be deleted, as ruled by the Court of Appeals. Nevertheless, this Court agrees with the petitioner and the trial that Respondent Carrascoso may still be held liable under Article 32 of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstruct, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxx xxx xxx (6) The rights against deprivation of property without due process of law; xxx xxx xxx 34 In Aberca v. Ver, this Court explained the nature and the purpose of this article as follows: It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield borrowing the words of Chief Justice Claudio Teehankee to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not 35 derived from reason, but which reason nevertheless controls." 36 Under the aforecited article, it is not necessary that the public officer acted with malice or bad faith. To be liable, it is enough that there was a violation of the constitutional rights of petitioner, even on the pretext of 37 justifiable motives or good faith in the performance of one's duties. We hold that petitioner's right to the use of his property was unduly impeded. While Respondent Carrascoso may have relied upon the PCGG's instructions, he could have further sought the specific legal basis therefor. A little exercise of prudence would have disclosed that there was no writ issued specifically for the sequestration of the racehorse winnings of petitioner. There was apparently no record of any such writ covering his racehorses either. The issuance of a sequestration order requires the showing of a prima facie case and due regard for the 38 requirements of due process. The withholding of the prize winnings of petitioner without a properly issued sequestration order clearly spoke of a violation of his property rights without due process of law. Art. 2221 of the Civil Code authorizes the award of nominal damages to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, not for indemnifying the 39 plaintiff for any loss suffered. The court may also award nominal damages in every case where a property right 40 has been invaded. The amount of such damages is addressed to the sound discretion of the court, with the

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relevant circumstances taken into account. WHEREFORE, the petition is hereby partially GRANTED. The assailed Decision, as herein clarified, is AFFIRMED with the MODIFICATION that Private Respondent Fernando O. Carrascoso Jr. is ORDERED TO PAY petitioner nominal damages in the amount of fifty thousand pesos (P50,000). No pronouncement as to costs. SO ORDERED. Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

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CIVIL SERVICE COMMISSION, petitioner, vs. JOSE J. LUCAS, respondent. PARDO, J.: 1 The petition for review on certiorari before the Court assails the decision of the Court of Appeals which set 2 aside the resolution of the Civil Service Commission and reinstated that of the Board of Personnel Inquiry 3 (BOPI for brevity), Office of the Secretary, Department of Agriculture, suspending respondent for one month, for simple misconduct. To provide a factual backdrop of the case, a recital of the facts is necessary. On May 26, 1992, Raquel P. Linatok, an assistant information officer at the Agricultural Information Division, Department of Agriculture (DA for brevity), filed with the office of the Secretary, DA, an affidavit-complaint against respondent Jose J. Lucas, a photographer of the same agency, for misconduct. Raquel described the incident in the following manner: While standing before a mirror, near the office door of Jose J. Lucas, Raquel noticed a chair at her right side which Mr. Jose Lucas, at that very instant used to sit upon. Thereafter, Mr. Lucas bent to reach for his shoe. At that moment she felt Mr. Lucas' hand touching her thigh and running down his palm up to her ankle. She was shocked and suddenly faced Mr. Lucas and admonished him not to do it again or she will kick him. But Lucas touched her again and so she hit Mr. Lucas. Suddenly Mr. Lucas shouted at her saying "lumabas ka na at huwag na huwag ka nang papasok dito kahit kailan" A verbal exchange then ensued and respondent Lucas grabbed Raquel by the arm and shoved her towards the door causing her to stumble, her both hands protected her face from smashing upon the door. Mr. Lucas, bent on literally throwing the affiant out of the office, grabbed her the second time while she attempted to regain her posture after being pushed the first time. . . . while doing all this, Mr. Lucas shouted at 4 the affiant, saying, "labas, huwag ka nang papasok dito kahit kailan". On June 8, 1992, the Board of Personnel Inquiry, DA, issued a summons requiring respondent to answer the complaint, not to file a motion to dismiss, within five (5) days from receipt. On June 17, 1992, respondent Lucas submitted a letter to Jose P. Nitullano, assistant head, BOPI, denying the charges. According to Lucas, he did not touch the thigh of complainant Linatok, that what transpired was that he accidentally brushed Linatok's leg when he reached for his shoes and that the same was merely accidental and he did not intend nor was there malice when his hand got in contact with Linatok's leg. On May 31, 1993, after a formal investigation by the BOPI, DA, the board issued a resolution finding respondent 5 guilty of simple misconduct and recommending a penalty of suspension for one (1) month and one (1) day. The Secretary of Agriculture approved the recommendation. In due time, respondent appealed the decision to the Civil Service Commission (CSC). On July 7, 1994, the CSC issued a resolution finding respondent guilty of grave misconduct and imposing on him the penalty of dismissal 6 from the service. Respondent moved for reconsideration but the CSC denied the motion. Then, respondent appealed to the Court of Appeals. On October 29, 1996, the Court of Appeals promulgated its decision setting aside the resolution of the CSC and reinstating the resolution of the BOPI, DA, stating thus: "It is true that the Civil Service Act does not define grave and simple misconduct. There is, however, no question that these offenses fall under different categories. This is clear from a perusal of memorandum circular No. 49-89 dated August 3, 1989 (also known as the guidelines in the application of penalties in administrative cases) itself which classifies administrative offenses into three: grave, less grave and light offenses. The charge of grave misconduct falls under the classification of grave offenses while simple misconduct is classified as a less grave offense. The former is punishable by dismissal while the latter is punishable either by suspension (one month and one day to six months), if it is the first offense; or by dismissal, if it is the second. Thus, they should be 7 treated as separate and distinct offenses. The Court of Appeals further ruled that "a basic requirement of due process on the other hand is that a person must be duly informed of the charges against him (Felicito Sajonas vs. National Labor Relations Commission, 183 SCRA 182). In the instant case however, Lucas came to know of the modification of the charge against him 8 only when he received notice of the resolution dismissing him from the service.

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Hence, this petition. The issues are (a) whether respondent Lucas was denied due process when the CSC found him guilty of grave misconduct on a charge of simple misconduct, and (b) whether the act complained of constitutes grave misconduct. Petitioner anchors its position on the view that "the formal charge against a respondent in an administrative case need not be drafted with the precision of an information in a criminal prosecution. It is sufficient that he is apprised of the substance of the charge against him; what is controlling is the allegation of the acts complained 9 of, and not the designation of the offense. We deny the petition. As well stated by the Court of Appeals, there is an existing guideline of the CSC distinguishing simple and grave misconduct. In the case of Landrito vs. Civil Service Commission, we held that "in grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant 10 disregard of established rule, must be manifest, which is obviously lacking in respondent's case. Respondent maintains that as he was charged with simple misconduct, the CSC deprived him of his right to due process by convicting him of grave misconduct. 11 We sustain the ruling of the Court of Appeals that: (a) a basic requirement of due process is that a person 12 must be duly informed of the charges against him and that (b) a person can not be convicted of a crime with 13 which he was not charged. Administrative proceedings are not exempt from basic and fundamental procedural principles, such as the right 14 to due process in investigations and hearings. 15 The right to substantive and procedural due process is applicable in administrative proceedings. Of course, we do not in any way condone respondent's act. Even in jest, he had no right to touch complainant's leg. However, under the circumstances, such act is not constitutive of grave misconduct, in the absence of proof that respondent was maliciously motivated. We note that respondent has been in the service for twenty (20) years and this is his first offense. IN VIEW WHEREOF, the Court hereby DENIES the petition for review on certiorari and AFFIRMS the decision of the Court of Appeals in CA-G.R. SP No. 37137.1wphi1.nt No cost. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, Purisima, Buena and Gonzaga-Reyes, JJ., concur.

LEONISA E. SUAREZ, petitioner, vs. COMMISSION ON AUDIT, respondent. DECISION PANGANIBAN, J.: A public officer cannot be held responsible for unauthorized increases in public expenditures or for high cost estimates in public biddings without proof of his or her participation therein. An administrative decision holding such public officer liable, without any evidence at all to back it up, is void for being rendered with grave abuse of discretion amounting to lack of jurisdiction. The Case Before us is a petition for certiorari seeking the reversal of the Decision[1] dated January 18, 1996 and the Resolution[2] dated September 9, 1997, promulgated by the Commission on Audit in COA Decision No. 96-021 and 97-506, respectively. The assailed Decision disposed as follows: [3] PREMISES CONSIDERED, the instant appeal must be as it is hereby denied for lack of merit and the herein disallowance of the Auditor is hereby affirmed. Petitioners Motion for Reconsideration was denied by Respondent Commission in its September 9, 1997 Resolution:[4] Accordingly, there being no new and material evidence adduced as would warrant reversal of the decision sought to be reconsidered, COA Decision No. 96-021 is hereby affirmed. However, the appeal of Messrs. Cayo E. Villanueva and Alfredo B. Adorable for exclusion from those persons found liable under the subject disallowance may now be given due course. The Antecedent Facts In his Comment, the solicitor general relates these undisputed facts:[5] On June 19, 1990, the Prequalification, Bids and Awards Committee (PBAC) of the Export Processing Zone Authority (EPZA) conducted a public bidding for the supply and installation of an Electrical Distribution System, Phases I and II, Stage II in the Cavite Export Processing Zone (CEPZ).

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The PBAC was composed of the following officials of EPZA, namely: 1. Tomas I. Alcantara Chairman 2. Ernesto Arrobio Vice-Chairman 3. Dante Quindoza Member 4. Sonia Valdeavilla Member 5. Floro Roco Member 6. Leonisa E. Suarez Member (Petitioner herein) (p. 123, Records)) Of the three (3) prospective bidders: Andrada Construction, Power Electric Co., Inc. (PELCO Inc.) and Prime Index, Inc., only two (2) participated in the aforesaid public bidding by submitting their respective bids, as follows: 1. PELCO, Inc. P2,966,155.00 2. Prime Index Phil. Inc. P3,425,096.00 (p. 123, Records) The third bidder Andrada Construction did not submit any bid but submitted instead a letter of regret. After evaluating the aforementioned bids, PBAC, in a Memorandum dated July 9, 1990, declared PELCO Inc. as the lowest complying bidder and thus recommended that the project be awarded to said PELCO Inc. (p. 128, Records). The above recommendation by PBAC was based on the Approved Agency Estimate (AAE) of the project in the amount of P2,860,156.72 (p. 126, Records) and the Allowable Government Estimate (AGE) in the amount of P3,027,891.19 (p. 123, Records). The AAE was, in turn, based on the Program of Work (POW) which indicates the amount of P2,306,578.00 as direct cost of the project (pp. 124-125, Records). On August 2, 1990, the contract involving the bidded project was executed between EPZA, through its Administrator Romeo J. Farolan, and PELCO Inc. through the latters President and General Manager Dionisio S. Barroga. On November 28, 1990, the parties to the above contract executed a supplemental agreement for additional works costing P2,663,394.01. Thereafter, the main contract and the supplemental agreement were submitted for review and evaluation by the Technical Services Office (TSO) of public respondent COA. In an Indorsement dated April 3, 1991, Director Arturo D. Dadufalsa of the TSO furnished the COA resident Auditor in EPZA with the Contract Review Report and the Supplemental Agreement Review Report issued by the Technical Audit Specialist of the TSO (p. 34, Records) The aforesaid reports show that the main contract and the supplemental agreement were above COA TSO estimates by as much as 31.55% and 34.53%, respectively, due to the higher cost of Transformers and wrong application of the Value Added Tax (VAT) in the Approved Agency Estimate (AAE). Accordingly, the COA resident [a]uditor disallowed the amount of P792,034.14 on the main contract and the amount of P683,687.45 on the supplemental agreement or an aggregate amount of P1,179,719.59 for the two contracts. Thereafter, notices of disallowance were issued to the following persons who were determined to have been jointly and severally liable for the amounts disallowed, viz: 1. Jorge G. Basalo Assistant Division Chief Engineering Department 2. Engr. Antonio M. Pulido Chief, Construction Division Engineering Department 3. Engr. Carlos Tangwangco Chief, Power and Communications Division Engineering Department 4. Engr. Ralph L. Mioza Manager, Engineering Department 5. Ms. Leonisa E. Suarez (herein petitioner) Chief, Environmental Safety Division 6. Engr. Ponciano O. Ramel Deputy Administrator Infrastructure Services 7. Mr. Mariano T. Laxa Manager, Financial Services Department

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8. Cayo Villanueva Deputy Administrator Support Services 9. Alfredo B. Adorable Manager, Internal Audit office 10. Power Electrical Co., Inc. (PELCO Inc.) Contractor (pp. 39-59, Records) Except for PELCO Inc., all the aforenamed EPZA officials jointly moved for the reconsideration of the disallowance in question but the same was denied in a Memorandum dated April 14, 1994 issued by COA Corporate Auditor Flora C. Feliciano (pp. 113-115, Records). Dissatisfied therewith, the concerned EPZA officials, including herein petitioner, appealed to public respondent COA on June 9, 1994. However, in a Decision dated January 15, 1996, public respondent COA denied the appeal On February 26, 1996, appellants, including herein petitioner, filed a Motion for Reconsideration of the aforementioned Decision. On March 16, petitioner, together with her co-appellants Cayo E. Villanueva and Alfredo Adorable, filed an Appeal for Exclusion from [L]iability. On September 9, 1997, public respondent COA rendered a Resolution (COA Decision No. 97-506) denying appellants Motion for Reconsideration, but declared that the appeal of Messrs. Cayo E. Villanueva and Alfredo B. Adorable for exclusion from those persons found liable under the subject disallowance may now be given due course. (Annex A, p. 3, Petition) Ruling of the Commission on Audit Respondent COA denied petitioners appeal, ruling as follows: This Commission finds the instant request devoid of merit. It must be pointed out that by using the price of only one brand while specifying three (3) brands, PEZA had not exercised prudence in the preparation of the AAE. There was no canvass made on the other brands specified, i.e., G.E and Westinghouse. By using the price of the Philec brand which is higher, in the preparation of AAE, the AGE necessarily increased, giving advantage to the bidder carrying/specifying such brand, thus resulting in a situation disadvantageous to the government. Anent the allegation of non-observance of due process in the issuance of the said disallowance, the same deserves scant consideration. Upon learning that the COA-TSO source of prices was the Northwest Electrical Supply, appellants could have asked for verification, made comparison and could have raised the issue in their appeal. As regards the allegation that COA officials themselves are to be blamed for acting without dispatch, it is worthy to note that the pre-audit of the financial transactions of national government agencies and government-owned and/or controlled corporations had been lifted as early as 1989. Thus, the review of subject contract was done as part of the post-audit. With reference to the appeal for exclusion from liability filed by Messrs. Cayo E. Villanueva, Deputy Administrator for Support Services, Alfredo B. Adorable, Manager, Internal Audit Office and Leonisa E. Suarez, Chief Environmental Safety Division, suffice it to state that the involvement of Messrs. Villanueva and Adorable in the project has no bearing or relevance on the preparation of the AAE, which was the ground for the disallowance, as this was actually prepared by the EPZA Engineering Department Technical Staff. Thus, they cannot be held liable for the disallowance. However, this Commission finds no sufficient basis to exclude Ms. Leonisa E. Suarez who is a member of the PBAC, from those answerable for the disallowance, as she had not shown good faith and diligence in performing properly her functions as such member.[6] Hence, this petition.[7] In his Comment dated February 24, 1998, the solicitor general disagreed with the assailed judgments of respondent and prayed that the petition be given due course. Accordingly, the Court, in its Resolution dated April 21, 1998, required respondent to file its own comment. In a sudden change of heart, respondent manifested that it was adopting in full the aforementioned Comment.[8] Thus, the Court dispensed with the submission of memoranda and resolved to decide the petition on the basis of the pleadings already filed. Assignment of Errors In her petition,[9] Suarez submits the following issues and assignment of errors: A. Whether the public respondent committed grave abuse of discretion and erred in holding the petitioner as among those liable for the disallowances despite the fact that she had no participation at all in the preparation and approval of the POW and AAE used as basis of the public bidding last June 19, 1990 for the supply and installation of electrical distribution system at the Cavite Export Processing Zone, EPZA. B. Whether the public respondent committed grave abuse of discretion and erred in holding the petitioner

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as among those liable for the disallowances despite the absence of substantial evidence that she acted with bad faith, malice or gross negligence in connection with the subject public bidding, in her capacity as member of the EPZA PBAC. C. Whether the public respondent committed grave abuse of discretion and erred in holding petitioner liable despite the fact that EPZA did not suffer damage or injury from the transaction. D. Whether the public respondent committed grave abuse of discretion in holding only the petitioner liable out of the total composition of the EPZA PBAC, thereby denying her the equal protection of the laws. The solicitor general, in his Comment,[10] summarized the main issue thus: xxx [W]hether or not public respondent COA committed grave abuse of discretion in affirming the Decision of the COA Resident Auditor holding petitioner jointly and severally liable, with the other EPZA officials, for the disallowance in question. The Courts Ruling The petition is clearly meritorious. Even Respondent COA conceded this when it adopted, as its own, the solicitor generals Comment urging this Court to grant due course to the petition. In fact, the Court is thoroughly surprised why, in the first place, the COA held petitioner liable; and, in the second, why it did not amend its assailed Decision upon realizing its mistake. Liability Based on Participation Presidential Decree 1445, Ordaining and Instituting a Government Auditing Code of the Philippines, provides: SECTION 103. General liability for unlawful expenditures.Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. (Underscoring supplied.) More specifically, Section 19 of the Manual of Certificate of Settlement and Balances states: 19.1 The liability of public officers and other persons for audit disallowances shall be determined on the basis of: (a) the nature of the disallowance; (b) the duties, responsibilities or obligations of the officers/persons concerned; (c) the extent of their participation or involvement in the disallowed transaction; and (d) the amount of losses or damages suffered by the government thereby. The following are illustrative examples: xxx xxx xxx 19.1.3 Public officers who approve or authorize transactions involving the expenditure of government funds and uses of government properties shall be liable for all losses arising out of their negligence or failure to exercise the diligence of a good father of a family. xxx xxx xxx 19.2 The liability for audit charges shall be measured by the individual participation or involvement of persons in the charged transaction; i.e. public officers whose duties require the appraisal/assessment/collection of government revenues and receipts shall be liable for under-appraisal, under-assessment, and undercollection thereof. On the basis of the foregoing, there is absolutely no basis for petitioners liability for the disauthorized sum. Respondent COA disallowed the amount in question, because the actual costs of the principal and the supplemental contracts were 31.55 percent and 34.53 percent higher than the COA-TSO estimates. The discrepancy, in turn, arose from the high cost of transformers and the wrong computation of the value-added tax appearing in the approved agency estimate (AAE). The AAE was based on the program of work (POW), which was prepared and approved by the following officials of the EPZA engineering department: Jorge Basalo, assistant division chief; Antonio M. Pulido, chief of the construction division; and Ismael Itaas. Petitioner had no part in the preparation of the POW. The AAE, on the other hand, was prepared and approved by two EPZA officials: Ponciano O. Ramel, deputy administrator for infrastructure services; and Pablo V. Malixi, EPZA officer in charge. Petitioner had no part in the preparation of the AAE, either. In fact, petitioners participation in the transaction was limited to her membership in the PBAC that conducted the bidding, evaluated the bids and recommended the award of the contract to the lowest complying bidder.[11] COA found no irregularity in the conduct of said public bidding or in the award of the contract. It must be stressed further that it disallowed the amount in question, not because of any problem in the conduct of the public bidding, but because of the erroneous preparation of the AAE. Clearly, petitioners participation in the PBAC does not render her liable for the disallowed amounts. As the solicitor general correctly argued, petitioner had nothing to do with the preparation and the computation of the AAE and, thus, should not have been held liable for the amounts disauthorized during the post-audit. Administrative Due Process It also appears that said Decision and Resolution of Respondent COA contravene the principles of administrative due process. Admittedly, she was accorded an opportunity to present her side, because COA

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heard her on appeal.[12] But due process requires more than giving a person the right to be heard. In a landmark Decision,[13] the Court enumerated the following principles governing administrative due process: 1. The right to a hearing, which included the right to present ones case and submit evidence in support thereof; 2. The tribunal must consider the evidence presented; 3. The decision must have something to support itself; 4. The evidence must be substantial; 5. The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. 6. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the view of a subordinate in arriving at a decision; and 7. The board or body should in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reason for the decision rendered. In this case, the assailed COA Decision did not contain substantial evidence showing petitioners responsibility for the disallowance. Substantial evidence means such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion.[14] COA anchored the disallowance and the liability of petitioner on the following: the failure to canvass other brands of the material purchased, and the submission and the approval of an erroneous AAE. Nonetheless, the assailed Decision did not show that petitioner was directly responsible for these proven acts. In fact, because Villanueva and Adorable were not responsible for these acts, COA exonerated them, viz.: xxx [T]he involvement of Messrs. Villanueva and Adorable in the project has no bearing or relevance on the preparation of the AAE, which was the ground for the disallowance, as this was actually prepared by the EPZA Engineering Department Technical Staff. Thus, they cannot be held liable for the disallowance. (Underscoring supplied.) The Court wonders why the same principle was not applied to petitioner who was similarly situated. As observed by the solicitor general, the only member of the PBAC who was held liable for the amounts disallowed was petitioner not the chairman, the vice chairman, or any of the three other members. Presumption of Regular Performance of Duty In holding petitioner liable for having failed to show good faith and diligence in properly performing her functions as a member of the PBAC, Respondent COA misconstrued Sec. 29.2[15] of the Revised CSB Manual. The aforesaid section requires a clear showing of bad faith, malice or gross negligence before a public officer may be held civilly liable for acts done in the performance of his or her official duties. The same principle is reiterated in Book I, Chapter 9, Section 38 of the 1987 Administrative Code.[16] A public officer is presumed to have acted in the regular performance of his/her duty; therefore, he/she cannot be held civilly liable, unless contrary evidence is presented to overcome the presumption. There is no such evidence in this case. From the foregoing, it is as clear as day that Respondent COA committed grave abuse of discretion in including petitioner among those liable for the subject disallowance. WHEREFORE, the assailed Decision and Resolution are hereby REVERSED AND SET ASIDE, insofar as they refer to petitioner who is EXONERATED from liability. SO ORDERED. Narvasa C.J., Regalado Davide Jr. Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Martinez, Quisumbing, and Purisima, JJ., concur.

BENJAMIN MASANGCAY, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent. Godofredo A. Ramos and Ruby Salazar-Alberto for petitioner. Office of the Solicitor General and Dominador D. Dayot for respondent. BAUTISTA ANGELO, J.: Benjamin Masangcay, with several others, was on October 14, 1957 charged before the Commission on Election with contempt for having opened three boxes bearing serial numbers l-8071, l-8072 and l-8073 containing official and sample ballots for the municipalities of the province of Aklan, in violation of the instructions of said Commission embodied in its resolution promulgated September 2, 1957, and its unnumbered resolution date March 5, 1957, inasmuch as he opened said boxes not the presence of the division superintendent of schools of Aklan, the provincial auditor, and the authorized representatives of the Nacionalista Party, the Liberal Party and the Citizens' Party, as required in the aforesaid resolutions, which are punishable under Section 5 of the Revised Election Code and Rule 64 of the Rules of Court. Masangcay was then the provincial treasurer of Aklan designated by the Commission in its resolution in Case CE-No. 270, part II 2 (b) thereof, to take charge of

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the receipt and custody of the official ballots, election forms and supplies, as well as of their distribution, among the different municipalities of the province. In compliance with the summons issued to Masangcay and his co-respondents to appear and show cause why they should not be punished for contempt on the basis of the aforementioned charge, they all appeared before the Commission on October 21, 1957 and entered a plea of not guilty. Thereupon, evidence was presented by both the prosecution and the defense, and on December 16, 1957 the Commission rendered its decision finding Masangcay and his co-respondent Molo guilty as charged and sentencing each of them to suffer three months imprisonment and pay a fine of P500, with subsidiary imprisonment of two months in case of insolvency, to be served in the provincial jail of Aklan. The other respondents were exonerated for lack of evidence. Masangcay brought the present petition for review raising as main issue the constitutionality of Section 5 of the Revised Election Code which grants the Commission on Elections as well as its members the power to punish acts of contempt against said body under the same procedure and with the same penalties provided for in Rule 64 of the Rules of Court in that the portion of said section which grants to the Commission and members the power to punish for contempt is unconstitutional for it infringes the principle underlying the separation of powers that exists among the three departments of our constitutional form of government. In other words, it is contended that, even if petitioner can be held guilty of the act of contempt charged, the decision is null and void for lack of valid power on the part of the Commission to impose such disciplinary penalty under the principle of separation of powers. There is merit in the contention that the Commission on Elections lacks power to impose the disciplinary penalty meted out to petitioner in the decision subject of review. We had occasion to stress in the 1 case of Guevara v. The Commission on Elections that under the law and the constitution, the Commission on Elections has only the duty to enforce and administer all laws to the conduct of elections, but also the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. In this sense, said, the Commission, although it cannot be classified a court of justice within the meaning of the Constitution (Section 30, Article VIII), for it is merely an administrative body, may however exercise quasi-judicial functions insofar as controversies that by express provision law come under its jurisdiction. The difficulty lies in drawing the demarcation line between the duty which inherently is administrative in character and a function which calls for the exercise of the quasi-judicial function of the Commission. In the same case, we also expressed the view that when the Commission exercises a ministerial function it cannot exercise the power to punish contempt because such power is inherently judicial in nature, as can be clearly gleaned from the following doctrine we laid down therein: . . . In proceeding on this matter, it only discharged a ministerial duty; it did not exercise any judicial function. Such being the case, it could not exercise the power to punish for contempt as postulated in the law, for such power is inherently judicial in nature. As this Court has aptly said: 'The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates courts, and, consequently, in the administration of justice (Slade Perkins v. Director of Prisons, 58 Phil., 271; U.S. v. Lee Hoc, 36 Phil., 867; In Re Sotto, 46 O.G., 2570; In Re Kelly, Phil., 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.). Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People v. Swena, 296 P., 271). And the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg v. Lecker, 31 N.E., 190; In Re Sims, 37 P., 135; Roberts v. Hacney, 58 SW., 810).1awphl.nt In the instant case, the resolutions which the Commission tried to enforce and for whose violation the charge for contempt was filed against petitioner Masangcay merely call for the exercise of an administrative or ministerial function for they merely concern the procedure to be followed in the distribution of ballots and other election paraphernalia among the different municipalities. In fact, Masangcay, who as provincial treasurer of Aklan was the one designated to take charge of the receipt, custody and distribution of election supplies in that province, was charged with having opened three boxes containing official ballots for distribution among several municipalities in violation of the instructions of the Commission which enjoin that the same cannot be opened except in the presence of the division superintendent of schools, the provincial auditor, and the authorized representatives of the Nacionalista Party, the Liberal Party, and the Citizens' Party, for he ordered their opening and distribution not in accordance with the manner and procedure laid down in said resolutions. And because of such violation he was dealt as for contempt of the Commission and was sentenced accordingly. In this sense, the Commission has exceeded its jurisdiction in punishing him for contempt, and so its decision is null and void. Having reached the foregoing conclusion, we deem it unnecessary to pass on the question of constitutionality raised by petitioner with regard to the portion of Section 5 of the Revised Election Code which confers upon the Commission on Elections the power to punish for contempt for acts provided for in Rule 64 of our rules of court. WHEREFORE, the decision appealed from insofar as petitioner Benjamin Masangcay is concerned, as

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well as the resolution denying petitioner's motion for reconsideration, insofar as it concerns him, are hereby reversed, without pronouncement as to costs. Bengzon, C. J., Padilla, Labrador, Concepcion, Barrera, Paredez, Dizon, Regala and Makalintal, JJ., concur. Reyes, J. B. L., J., took no part. Footnotes 1 G. R. No. L-12596, July 31, 1958. SEC. QUIRICO P. EVANGELISTA, in his capacity as Secretary of the Presidential Agency on Reforms and Government Operations, and the PRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS (PARGO), petitioner, vs. HON. HILARION U. JARENCIO, as Presiding Judge, Court of First Instance of Manila, Branch XXIII, and FERNANDO MANALASTAS, Assistant City Public Service Officer of Manila, and ALL OTHER CITY OFFICIALS AND EMPLOYEES SIMILARLY SITUATED, respondents. Office of the Solicitor General Antonio P. Barredo, Ist. Assistant Solicitor General Esmeraldo Umali and Solicitor Bernardo P. Pardo for petitioners. Gregorio A. Ejercito and Felix C. Chavez for respondents. MARTIN, J.: This is an original action for certiorari and prohibition with preliminary injunction, under Rule 65 of the Rules of Court, seeking to annul and set aside the order of respondent Judge, the Honorable Hilarion J. Jarencio, Presiding Judge of the Court of First Instance of Manila, dated July 1, 1968, in Civil Case No. 73305, entitled "Fernando Manalastas vs. Sec. Ramon D. Bagatsing, etc.", which reads as follows: IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the writ of preliminary injunction prayed for by the petitioner [private respondent] be issued restraining the respondents [petitioners], their agents, representatives, attorneys and/or other persons acting in their behalf from further issuing subpoenas in connection with the fact-finding investigations to the petitioner [private respondent] and from instituting contempt proceedings against the petitioner [private respondent] under Section 580 of the Revised Administrative Code. (Stress supplied). 1 Pursuant to his special powers and duties under Section 64 of the Revised Administrative Code, the President of the Philippines created the Presidential Agency on Reforms and Government Operations (PARGO) under 2 Executive Order No. 4 of January 7, 1966. Purposedly, he charged the Agency with the following functions and 3 responsibilities: b. To investigate all activities involving or affecting immoral practices, graft and corruptions, smuggling (physical or technical), lawlessness, subversion, and all other activities which are prejudicial to the government and the public interests, and to submit proper recommendations to the President of the Philippines. c. To investigate cases of graft and corruption and violations of Republic Acts Nos. 1379 and 3019, and gather necessary evidence to establish prima facie, acts of graft and acquisition of unlawfully amassed wealth ... . h. To receive and evaluate, and to conduct fact-finding investigations of sworn complaints against the acts, conduct or behavior of any public official or employee and to file and prosecute the proper charges with the appropriate agency. For a realistic performance of these functions, the President vested in the Agency all the powers of an investigating committee under Sections 71 and 580 of the Revised Administrative Code, including the power to summon witnesses by subpoena or subpoena duces tecum, administer oaths, take testimony or evidence 4 relevant to the investigation. Whereupon, on June 7, 1968, petitioner Quirico Evangelista, as Undersecretary of the Agency, issued to respondent Fernando Manalastas, then Acting City Public Service Officer of Manila, a subpoena ad testificandum commanding him "to be and appear as witness at the Office of the PRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS ... then and there to declare and testify in a certain investigation pending therein." Instead of obeying the subpoena, respondent Fernando Manalastas filed on June 25, 1968 with the Court of First Instance of Manila an Amended Petition for prohibition, certiorari and/or injunction with preliminary injunction and/or restraining order docketed as Civil Case No. 73305 and assailed its legality. On July 1, 1968, respondent Judge issued the aforementioned Order: IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the writ of preliminary injunction prayed for by the petitioner [private respondent] be issued restraining the respondents [petitioners], their agents, representatives, attorneys and/or other persons acting in their behalf from further issuing subpoenas in connection with the fact-finding investigations to the petitioner [private respondent] and from instituting contempt

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proceedings against the petitioner [private respondent] under Section 530 of the Revised Administrative Code. (Stress supplied). Because of this, petitioners 5 elevated the matter direct to Us without a motion for reconsideration first filed on 6 the fundamental submission that the Order is a patent nullity. As unfurled, the dominant issue in this case is whether the Agency, acting thru its officials, enjoys the authority to issue subpoenas in its conduct of fact-finding investigations. It has been essayed that the life blood of the administrative process is the flow of fact, the gathering, the 7 organization and the analysis of evidence. Investigations are useful for all administrative functions, not only for rule making, adjudication, and licensing, but also for prosecuting, for supervising and directing, for determining general policy, for recommending, legislation, and for purposes no more specific than illuminating obscure areas 8 to find out what if anything should be done. An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial nature may be taken 9 and may require the attendance of witnesses in proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, and to report findings to appropriate bodies and make recommendations 10 for actions. We recognize that in the case before Us, petitioner Agency draws its subpoena power from Executive Order No. 4, para. 5 which, in an effectuating mood, empowered it to "summon witness, administer oaths, and take 11 testimony relevant to the investigation" with the authority "to require the production of documents under a subpoena duces tecum or otherwise, subject in all respects to the same restrictions and qualifications as apply in 12 judicial proceedings of a similar character." Such subpoena power operates in extenso to all the functions of the Agency as laid out in the aforequoted sub-paragraphs (b),(e), and (h). It is not bordered by nor is it merely exercisable, as respondents would have it, in quasi-judicial or adjudicatory function under sub-paragraph (b). The functions enumerated in all these sub-paragraphs (b), (e), and (h) interlink or intertwine with one another with the principal aim of meeting the very purpose of the creation of the Agency, which is to forestall and erode nefarious activities and anomalies in the civil service. To hold that the subpoena power of the Agency is confined to mere quasi-judicial or adjudicatory functions would therefore imperil or inactiviate the Agency in its investigatory functions under sub-paragraphs (e) and (h). More than that, the enabling authority itself (Executive Order No. 4, para. 5) fixes no distinction when and in what function should the subpoena power be exercised. Similarly, We see no reason to depart from the established rule that forbids differentiation when the law itself makes none. Nor could We impress upon this subpoena power the alleged strictures of a subpoena issued under the Rules of 13 Court to abridge its application. The seeming proviso in Section 580 of the Revised Administrative Code that the right to summon witnesses and the authority to require the production of documents under a subpoena duces tecum or otherwise shall be "subject in all respects to the same restrictions and qualifications as apply in judicial proceedings of a similar character" cannot be validly seized upon to require, in respondents' formulation, that, as in a subpoena under the Rules, a specific case must be pending before a court for hearing or trial and 14 that the hearing or trial must be in connection with the exercise of the court's judicial or adjudicatory functions before a non-judicial subpoena can be issued by an administrative agency like petitioner Agency. It must be emphasized, however, that an administrative subpoena differs in essence from a judicial subpoena. Clearly, what the Rules speaks of is a judicial subpoena, one procurable from and issuable by a competent court, and not an administrative subpoena. To an extent, therefore, the "restrictions and qualifications" referred to in Section 580 of the Revised Administrative Code could mean the restraints against infringement of constitutional rights or when the subpoena is unreasonable or oppressive and when the relevancy of the books, documents or 15 things does not appear. Rightly, administrative agencies may enforce subpoenas issued in the course of investigations, whether or not 16 adjudication is involved, and whether or not probable cause is shown and even before the issuance of a 17 complaint. It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully 18 authorized purpose. The purpose of the subpoena is to discover evidence, not to prove a pending charge, but 19 upon which to make one if the discovered evidence so justifies. Its obligation cannot rest on a trial of the value of testimony sought; it is enough that the proposed investigation be for a lawfully authorized purpose, and that 20 the proposed witness be claimed to have information that might shed some helpful light. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues on litigations it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. The administrative agency has the power of inquisition which is not dependent upon a case or controversy in order to get evidence, but can investigate merely on suspicion that the law is being violated or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too may take steps to inform itself as to whether

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there is probable violation of the law. In sum, it may be stated that a subpoena meets the requirements for enforcement if the inquiry is (1) within the authority of the agency; (2) the demand is not too indefinite; and (3) 22 the information is reasonably relevant. There is no doubt that the fact-finding investigations being conducted by the Agency upon sworn statements 23 implicating certain public officials of the City Government of Manila in anomalous transactions fall within the Agency's sphere of authority and that the information sought to be elicited from respondent Fernando 24 Manalastas, of which he is claimed to be in possession, is reasonably relevant to the investigations. We are mindful that the privilege against self-incrimination extends in administrative investigations, generally, in 25 26 scope similar to adversary proceedings. In Cabal v. Kapunan, Jr., the Court ruled that since the administrative charge of unexplained wealth against the respondent therein may result in the forfeiture of the property under the Anti-Graft and Corrupt Practices Act, a proceeding criminal or penal in nature, the complainant cannot call the respondent to the witness stand without encroaching upon his constitutional 27 privilege against self-incrimination. Later, in Pascual, Jr. v. Board of Medical Examiners, the same approach was followed in the administrative proceedings against a medical practitioner that could possibly result in the loss of his privilege to practice the medical profession. Nevertheless, in the present case, We find that 28 respondent Fernando Manalastas is not facing any administrative charge. He is merely cited as a witness in connection with the fact-finding investigation of anomalies and irregularities in the City Government of Manila with the object of submitting the assembled facts to the President of the Philippines or to file the corresponding 29 charges. Since the only purpose of investigation is to discover facts as a basis of future action, any 30 unnecessary extension of the privilege would thus be unwise. Anyway, by all means, respondent Fernando Manalastas may contest any attempt in the investigation that tends to disregard his privilege against selfincrimination. A question of constitutional dimension is raised by respondents on the inherent power of the President of the 31 Philippines to issue subpoena. More tersely stated, respondents would now challenge, in a collateral way, the validity of the basic authority, Executive Order No. 4, as amended in part by Executive Order No. 88. Unfortunately, for reasons of public policy, the constitutionality of executive orders, which are commonly said to 32 33 have the force and effect of statutes cannot be collaterally impeached. Much more when the issue was not 34 duly pleaded in the court below as to be acceptable for adjudication now. The settled rule is that the Court will 35 not anticipate a question of constitutional law in advance of the necessity of deciding it. Nothing then appears conclusive than that the disputed subpoena issued by petitioner Quirico Evangelista to respondent Fernando Manalastas is well within the legal competence of the Agency to issue. WHEREFORE, the aforequoted order of respondent Judge, dated July 1, 1968, is hereby set aside and declared of no force and effect. Without pronouncement as to costs. SO ORDERED. Castro, Antonio, Esguerra, Muoz Palma and Aquino, JJ., concur. Makalintal, C.J., concurs in the result. Barredo, Makasiar, and Concepcion, Jr., JJ, took no part.

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Separate Opinions FERNANDO, J., concurring: The opinion of the Court, ably penned by Justice Martin, is both learned and comprehensive. It reflects the current state of doctrinal pronouncements in American Administrative Law, which up to now possesses worth in this jurisdiction. It is in accordance with the views expressed in two authoritative American treatises that of 1 2 3 Davis and that of Jaffe. The compact but highly useful text of Parker yields the same conclusion. A similar 4 5 approach may be discerned in the casebooks of Katz, and McFarland and Vanderbelt. A concurrence is thus called for. That for me does not conclude matters though. The constitutional rights of a person who may be involved in such administrative investigation, call for respect. A recognition of the expanded reach of the administrative process in order to assure that the objectives of a regulatory statute be attained cannot obscure the protection that the Constitution affords a person who may find himself in the position of a respondent. It is worthwhile to my mind that there be a reference, even if far from detailed, to such an aspect. Hence this separate opinion. 1. The right to be protected against unreasonable search and seizure should not fall by the wayside. 6 The broad sweep of the administrative power of investigation cannot, consistently with the Constitution, go so far as to render it meaningless. It is with such a reading in mind that I view the pronouncement in United States v. 7 Morton Salt Co., on which reliance is placed in the opinion of Justice Martin. The doctrine formulated in such

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American case by Justice Jackson reads thus: "Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. Federal Trade Comm. v. American Tobacco Co., ... . But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. "The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be 8 unreasonable."" It has been given approval in an impressive number of subsequent adjudications. 9 It suffices, however, to call attention to the words of Justice Jackson in the two paragraphs preceding the excerpts cited to remove any doubt as to its lending itself to the construction that an inroad into the right of search and seizure is now permissible: "The Commission's order is criticized upon grounds that the order transgresses the Fourth Amendment's proscription of unreasonable searches and seizures and the Fifth Amendment's due process of law clause. It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. ... Although the "right to be let alone the most comprehensive of rights and the right most valued by civilized men," ... is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, ... neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. ... While they may and should have protection from unlawful demands made in the name of public investigation, ... corporations can claim no equality with individuals in the enjoyment of a right to privacy . ... They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. ... Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate 10 right to satisfy themselves that corporate behavior is consistent with the law and the public interest." Thus is rendered clear that the landmark Boyd decision which warned against the use of the subpoena power to trench upon this guarantee still speaks authoritatively. This Court has spoken to the same effect, Boyd having been 11 cited in a number of cases. I would, therefore, read the opinion of my brethren as not departing from but precisely adhering to its command. Whatever relaxation of its compelling force may be allowable in case of corporations should not apply where an individual is concerned. That should reassure respondent Manalastas that if he could demonstrate a failure to abide by the constitutional mandate on search and seizure, he is not without a remedy. 2. Nor can I fully reconcile myself to the implications lurking in this observation in the opinion of the Court: "Since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of 12 13 the privilege would thus be unwise." The right not to incriminate oneself is equally deserving of the utmost deference and respect. What is more, the present Constitution by the adoption of the Miranda doctrine has 14 vitalized it even further. There is, happily, the last sentence of such paragraph: "Anyway, by all means, respondent Fernando Manalastas may contest any attempt in the investigation that tends to disregard his 15 privilege against self- incrimination." When read in connection with the earlier reference to the fact that the respondent is called as a witness not as the party proceeded against, it cannot be said, in the light of the ruling 16 in Planas v. Gil, that it offends against this constitutional guarantee. As of now then, with the question of any modification of the Planas doctrine not being properly before us, I can yield my concurrence. Candor compels the statement, however, that for me a reexamination of such a pronouncement is desirable. A distinction between a witness and a respondent may be too tenuous if the realities of the situation be fully considered. I am 17 18 bothered by the thought that the force of the Cabal and the Pascual, Jr. decisions may be eroded if the prospective respondent is first called as a witness and is thus compelled to testify. For the present, it may suffice if I express my misgivings. At any rate, concurrence is not ruled out in view of the aforementioned caveat in the able opinion of Justice Martin. TEEHANKEE, J., dissenting: I am constrained to dissent from the main opinion of Mr. Justice Martin which grants the petition and sets aside respondent court's order and writ of preliminary injunction of July 1, 1968 and would therefore require respondent Fernando Manalastas as assistant city public service officer of Manila (and all other city officials similarly situated) to comply with the PARGO subpoena "to testify to matters relevant to the investigation of 1 anomalies and sworn statements involving or implicating certain City officials or other public officers." 2 While the subpoena commands respondent Manalastas to appear as witness before the PARGO, on the basis whereof the main opinion finds that said respondent "is not facing any administrative charge" and that "he is merely cited as witness in connection with the fact-finding investigation of anomalies and irregularities in the City Government of Manila with the object of submitting the assembled facts to the President of the Philippines or to 3 file the corresponding charges", it is a fact shown by the very petition at bar itself and its Annexes B and B-1 that respondent Manalastas is in fact and for all intents and purposes subpoenaed as a respondent or one directly implicated with alleged bribery and graft in the said sworn statements that concededly as per the petition 4 itself initiated the PARGO's alleged "fact-finding investigation."

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Thus Annex B of the petition which is a sworn statement of one Edilberto Arguelles, investigated by the PARGO on the overpricing of eight steam cleaners sold through him as commission agent to the City of Manila, sets forth the detailed allegations of said declarant that respondent Manalastas and a number of other city officials named and unnamed got the lion's share of the overpricing. Annex B-1 of the petition is the sworn statement of one Carlos Montaez with reference to some overpriced equipment sold by him to the City of Manila wherein he likewise narrated in detail the modus operandi and specifically named respondent Manalastas and five other officials to whom he allegedly gave: "due monetary consideration." All claims of PARGO to the contrary notwithstanding, the very petition and said annexed sworn statements (which were not shown to respondent judge in spite of his expressly asking for them during the course of the hearing 5) show that respondent Manalastas (and others similarly situated) are indeed not merely witnesses but in reality respondents (subject to administrative and criminal charges.) 6 Respondent has therefore correctly invoked Cabal vs. Kapunan, wherein the Court through then Chief Justice Roberto Concepcion held that therein petitioner rightfully refused to take the witness stand as against the order of the Presidential Committee investigating the complaint against him for alleged unexplained wealth (since such proceedings were in substance and effect a criminal one and his position was virtually that of an accused on trial and he therefore had the right to remain silent and invoke the privilege against self-incrimination in support of a blanket refusal to answer any and all questions) and ordered the dismissal of the criminal contempt charge against him. 7 Pascual Jr. vs. Bd. of Examiners is equally in point, wherein the Court sustained the lower court's writ of injunction against the respondent board's order compelling therein petitioner to take the witness stand in a malpractice case (wherein he was respondent) in view of the penal nature of the proceedings and the right of the 8 accused to refuse "not only to answer incriminatory questions, but also to take the witness stand." The Court therein stressed that "the constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government ... must accord to the dignity and integrity of its citizens."" and that "while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment." That petitioner's investigation and subpoena against respondent Manalastas were in substance and effect criminal in nature against him as a respondent (and not merely as witness) as indicated above, is borne out by the fact of record in Sugay vs. Pamaran 9 (of which the Court can well take judicial notice) that on July 22, 1971 10 respondent Manalastas as well as Carlos Montaez the trader (affiant in Annex B-1, petition, supra, ) and a number of other city officials were charged by the city fiscal in the Circuit Criminal Court of Manila for violations of Republic Act 3019 (Anti-Graft Law) in connection with the alleged gross overpricing of the same equipment (steam cleaners and air compressor) purchased for the City. The main opinion's justification for upholding the subpoena, viz, that "since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege (against self11 incrimination)would thus be unnecessary" thus appears to be flawed in fact and in law: respondent was in fact being investigated as respondent-suspect and without submitting to the investigation was actually criminally charged in court; as a pure matter of legal principle, the 1973 Constitution has recognized the necessity of strengthening (and extending) the privilege against self-incrimination by expressly providing as a constitutional mandate in the Bill of Rights that "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right" (Article IV, section 20) and outlawing the use of any confession obtained in violation of said section by declaring its inadmissibility in evidence. Respondent Manalastas was therefore justified in invoking the privilege against self-incrimination and in securing the respondent court's injunction against enforcement of petitioner's subpoena. Respondent was unquestionably a party respondent who under the doctrine of Cabal and Pascual, supra, had the right to remain silent and invoke the privilege against self-incrimination and refuse to take the witness stand. This legal and constitutional right may not be defeated by the transparent expedient of citing respondent as a supposed witness in what was avowed to be a general fact-finding investigation but obviously was a fishing expedition to ensnare respondent as a prime suspect, as borne out by the sworn statements withheld from respondent court and now annexed to the very petition at bar and petitioner's contention that "In effect, the injunction issued by the lower court is one to restrain criminal prosecutions." This contention has of course been proven baseless by the events already cited above that such criminal prosecutions were in fact filed in court against respondent and others without the need

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of petitioner's "fact-finding investigation" and subpoenas. The thrust of all this is that the State with its overwhelming and vast powers and resources can and must ferret out and investigate wrongdoing, graft and corruption and at the same time respect the constitutional guarantees of the individual's right to privacy, silence and due process and against self-incrimination and unreasonable search and seizure. This means that leads and charges must be investigated and followed up through the assistance of the corresponding police and law enforcement agencies as provided in the petitioner's executive 12 charter and the evidence secured by proper applications for search warrants, and as conceded in the petition itself, after the corresponding report to the President "to file the corresponding charges against the persons who may appear responsible or merely refer them to other appropriate offices such as the Fiscal's office, like what 13 was done in other cases." There appears to be validity in respondent's contention that the subpoena power granted petitioner in its 14 executive charter does not apply to general fact-finding investigations conducted by it. I find no need, however, of going further into this issue, since this dissent is based directly on the fundamental tenet that respondent Manalastas was unquestionably being investigated by petitioner as respondent and a prime suspect (and not as a mere witness) and accordingly, under settled doctrine, he had every right to remain silent and to invoke his right against self-incrimination and to refuse to take the witness stand. I therefore vote for upholding respondent court's injunction against enforcement of petitioner's subpoena.

Separate Opinions FERNANDO, J., concurring: The opinion of the Court, ably penned by Justice Martin, is both learned and comprehensive. It reflects the current state of doctrinal pronouncements in American Administrative Law, which up to now possesses worth in this jurisdiction. It is in accordance with the views expressed in two authoritative American treatises that of 1 2 3 Davis and that of Jaffe. The compact but highly useful text of Parker yields the same conclusion. A similar 4 5 approach may be discerned in the casebooks of Katz, and McFarland and Vanderbelt. A concurrence is thus called for. That for me does not conclude matters though. The constitutional rights of a person who may be involved in such administrative investigation, call for respect. A recognition of the expanded reach of the administrative process in order to assure that the objectives of a regulatory statute be attained cannot obscure the protection that the Constitution affords a person who may find himself in the position of a respondent. It is worthwhile to my mind that there be a reference, even if far from detailed, to such an aspect. Hence this separate opinion. 1. The right to be protected against unreasonable search and seizure should not fall by the wayside. 6 The broad sweep of the administrative power of investigation cannot, consistently with the Constitution, go so far as to render it meaningless. It is with such a reading in mind that I view the pronouncement in United States v. 7 Morton Salt Co., on which reliance is placed in the opinion of Justice Martin. The doctrine formulated in such American case by Justice Jackson reads thus: "Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. Federal Trade Comm. v. American Tobacco Co., ... . But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. "The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be 8 unreasonable."" It has been given approval in an impressive number of subsequent adjudications. 9 It suffices, however, to call attention to the words of Justice Jackson in the two paragraphs preceding the excerpts cited to remove any doubt as to its lending itself to the construction that an inroad into the right of search and seizure is now permissible: "The Commission's order is criticized upon grounds that the order transgresses the Fourth Amendment's proscription of unreasonable searches and seizures and the Fifth Amendment's due process of law clause. It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. ... Although the "right to be let alone the most comprehensive of rights and the right most valued by civilized men," ... is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, ... neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. ... While they may and should have protection from unlawful demands made in the name of public investigation, ... corporations can claim no equality with individuals in the enjoyment of a right to privacy . ... They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. ... Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate 10 right to satisfy themselves that corporate behavior is consistent with the law and the public interest." Thus is rendered clear that the landmark Boyd decision which warned against the use of the subpoena power to trench

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upon this guarantee still speaks authoritatively. This Court has spoken to the same effect, Boyd having been 11 cited in a number of cases. I would, therefore, read the opinion of my brethren as not departing from but precisely adhering to its command. Whatever relaxation of its compelling force may be allowable in case of corporations should not apply where an individual is concerned. That should reassure respondent Manalastas that if he could demonstrate a failure to abide by the constitutional mandate on search and seizure, he is not without a remedy. 2. Nor can I fully reconcile myself to the implications lurking in this observation in the opinion of the Court: "Since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of 12 13 the privilege would thus be unwise." The right not to incriminate oneself is equally deserving of the utmost deference and respect. What is more, the present Constitution by the adoption of the Miranda doctrine has 14 vitalized it even further. There is, happily, the last sentence of such paragraph: "Anyway, by all means, respondent Fernando Manalastas may contest any attempt in the investigation that tends to disregard his 15 privilege against self- incrimination." When read in connection with the earlier reference to the fact that the respondent is called as a witness not as the party proceeded against, it cannot be said, in the light of the ruling 16 in Planas v. Gil, that it offends against this constitutional guarantee. As of now then, with the question of any modification of the Planas doctrine not being properly before us, I can yield my concurrence. Candor compels the statement, however, that for me a reexamination of such a pronouncement is desirable. A distinction between a witness and a respondent may be too tenuous if the realities of the situation be fully considered. I am 17 18 bothered by the thought that the force of the Cabal and the Pascual, Jr. decisions may be eroded if the prospective respondent is first called as a witness and is thus compelled to testify. For the present, it may suffice if I express my misgivings. At any rate, concurrence is not ruled out in view of the aforementioned caveat in the able opinion of Justice Martin. TEEHANKEE, J., dissenting: I am constrained to dissent from the main opinion of Mr. Justice Martin which grants the petition and sets aside respondent court's order and writ of preliminary injunction of July 1, 1968 and would therefore require respondent Fernando Manalastas as assistant city public service officer of Manila (and all other city officials similarly situated) to comply with the PARGO subpoena "to testify to matters relevant to the investigation of 1 anomalies and sworn statements involving or implicating certain City officials or other public officers." 2 While the subpoena commands respondent Manalastas to appear as witness before the PARGO, on the basis whereof the main opinion finds that said respondent "is not facing any administrative charge" and that "he is merely cited as witness in connection with the fact-finding investigation of anomalies and irregularities in the City Government of Manila with the object of submitting the assembled facts to the President of the Philippines or to 3 file the corresponding charges", it is a fact shown by the very petition at bar itself and its Annexes B and B-1 that respondent Manalastas is in fact and for all intents and purposes subpoenaed as a respondent or one directly implicated with alleged bribery and graft in the said sworn statements that concededly as per the petition 4 itself initiated the PARGO's alleged "fact-finding investigation." Thus Annex B of the petition which is a sworn statement of one Edilberto Arguelles, investigated by the PARGO on the overpricing of eight steam cleaners sold through him as commission agent to the City of Manila, sets forth the detailed allegations of said declarant that respondent Manalastas and a number of other city officials named and unnamed got the lion's share of the overpricing. Annex B-1 of the petition is the sworn statement of one Carlos Montaez with reference to some overpriced equipment sold by him to the City of Manila wherein he likewise narrated in detail the modus operandi and specifically named respondent Manalastas and five other officials to whom he allegedly gave: "due monetary consideration." All claims of PARGO to the contrary notwithstanding, the very petition and said annexed sworn statements (which were not shown to respondent judge in spite of his expressly asking for them during the course of the hearing 5) show that respondent Manalastas (and others similarly situated) are indeed not merely witnesses but in reality respondents (subject to administrative and criminal charges.) 6 Respondent has therefore correctly invoked Cabal vs. Kapunan, wherein the Court through then Chief Justice Roberto Concepcion held that therein petitioner rightfully refused to take the witness stand as against the order of the Presidential Committee investigating the complaint against him for alleged unexplained wealth (since such proceedings were in substance and effect a criminal one and his position was virtually that of an accused on trial and he therefore had the right to remain silent and invoke the privilege against self-incrimination in support of a blanket refusal to answer any and all questions) and ordered the dismissal of the criminal contempt charge against him. 7 Pascual Jr. vs. Bd. of Examiners is equally in point, wherein the Court sustained the lower court's writ of injunction against the respondent board's order compelling therein petitioner to take the witness stand in a malpractice case (wherein he was respondent) in view of the penal nature of the proceedings and the right of the 8 accused to refuse "not only to answer incriminatory questions, but also to take the witness stand." The Court therein stressed that "the constitutional guarantee, along with other rights granted an accused, stands for a belief

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that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government ... must accord to the dignity and integrity of its citizens."" and that "while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment." That petitioner's investigation and subpoena against respondent Manalastas were in substance and effect criminal in nature against him as a respondent (and not merely as witness) as indicated above, is borne out by the fact of record in Sugay vs. Pamaran 9 (of which the Court can well take judicial notice) that on July 22, 1971 10 respondent Manalastas as well as Carlos Montaez the trader (affiant in Annex B-1, petition, supra, ) and a number of other city officials were charged by the city fiscal in the Circuit Criminal Court of Manila for violations of Republic Act 3019 (Anti-Graft Law) in connection with the alleged gross overpricing of the same equipment (steam cleaners and air compressor) purchased for the City. The main opinion's justification for upholding the subpoena, viz, that "since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege (against self11 incrimination)would thus be unnecessary" thus appears to be flawed in fact and in law: respondent was in fact being investigated as respondent-suspect and without submitting to the investigation was actually criminally charged in court; as a pure matter of legal principle, the 1973 Constitution has recognized the necessity of strengthening (and extending) the privilege against self-incrimination by expressly providing as a constitutional mandate in the Bill of Rights that "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right" (Article IV, section 20) and outlawing the use of any confession obtained in violation of said section by declaring its inadmissibility in evidence. Respondent Manalastas was therefore justified in invoking the privilege against self-incrimination and in securing the respondent court's injunction against enforcement of petitioner's subpoena. Respondent was unquestionably a party respondent who under the doctrine of Cabal and Pascual, supra, had the right to remain silent and invoke the privilege against self-incrimination and refuse to take the witness stand. This legal and constitutional right may not be defeated by the transparent expedient of citing respondent as a supposed witness in what was avowed to be a general fact-finding investigation but obviously was a fishing expedition to ensnare respondent as a prime suspect, as borne out by the sworn statements withheld from respondent court and now annexed to the very petition at bar and petitioner's contention that "In effect, the injunction issued by the lower court is one to restrain criminal prosecutions." This contention has of course been proven baseless by the events already cited above that such criminal prosecutions were in fact filed in court against respondent and others without the need of petitioner's "fact-finding investigation" and subpoenas. The thrust of all this is that the State with its overwhelming and vast powers and resources can and must ferret out and investigate wrongdoing, graft and corruption and at the same time respect the constitutional guarantees of the individual's right to privacy, silence and due process and against self-incrimination and unreasonable search and seizure. This means that leads and charges must be investigated and followed up through the assistance of the corresponding police and law enforcement agencies as provided in the petitioner's executive 12 charter and the evidence secured by proper applications for search warrants, and as conceded in the petition itself, after the corresponding report to the President "to file the corresponding charges against the persons who may appear responsible or merely refer them to other appropriate offices such as the Fiscal's office, like what 13 was done in other cases." There appears to be validity in respondent's contention that the subpoena power granted petitioner in its 14 executive charter does not apply to general fact-finding investigations conducted by it. I find no need, however, of going further into this issue, since this dissent is based directly on the fundamental tenet that respondent Manalastas was unquestionably being investigated by petitioner as respondent and a prime suspect (and not as a mere witness) and accordingly, under settled doctrine, he had every right to remain silent and to invoke his right against self-incrimination and to refuse to take the witness stand. I therefore vote for upholding respondent court's injunction against enforcement of petitioner's subpoena.

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