Due to the personal representations and assurances of respondent, Agustin, and

ADM. CASE No. 6595 April 15, 2005

Bernal, complainant was convinced and he invested his dollar savings with FIRI on
JOSEPH SAMALA, Complainant,
March 9, 2001.
vs.
Subsequently, complainant decided to pull out his investment. On April 5, 2001, he
ATTY. ANTONUITTI K. PALAÑA, respondent.
sent FIRI a letter requesting the withdrawal of his investment amounting to
RESOLUTION
US$10,000 and giving FIRI 10 days to prepare the money.
AZCUNA, J.:
On April 15, 2001, complainant asked Agustin when his money would be returned.
This is a complaint filed by Joseph Samala against respondent Atty. Antonuitti K.
Agustin told him that the request was sent to Thomas Yiu of Eastern Vanguard at
Palaña for alleged fraudulent activities that violate the Code of Professional
Ortigas Center. Complainant went to see Thomas Yiu at his office. Yiu was surprised
Responsibility.
when he saw the documents involving complainant's investment. Yiu phoned
Sometime in February 2001, complainant was looking for a company where he could
Agustin and demanded an explanation as to where the money was. Agustin said that
invest his dollar savings. He met Raymond Taino, a trader-employee of First
he would return complainant's investment at FIRI's office in Makati. On the same
Imperial Resources, Inc. (FIRI), a company located at Legaspi Village, Makati City.
day, in the presence of respondent, Agustin delivered to complainant a check in the
Taino introduced him to FIRI Manager Jun Agustin, Chief Trader Diosdado Bernal,
amount of P574,045.09, as the peso equivalent of complainant's investment with
and Legal Officer Antonuitti K. Palaña, the respondent herein.
FIRI. On May 2, 2001, the said check was dishonored because it was drawn against
Complainant expressed his concern to the said three officers of FIRI about having
insufficient funds.
been warned of numerous fraudulent businesses in the Philippines. Respondent
Complainant informed respondent of the dishonor of the check. Respondent assured
assured him that through FIRI he would be directly putting his investment with
him that the check would be replaced. On June 1, 2001, respondent, as legal officer
Eastern Vanguard Forex Limited, a reputable company based in the Virgin Islands
of FIRI, gave complainant P250,000 in cash and a check in the amount
which has been in the foreign exchange business for 13 years. The three officers
of P329,045.09. Respondent told complainant that the check was signed by FIRI
presented to him their company profile and documents purporting to establish their
President Paul Desiderio in his (respondent's) presence and assured complainant that
relationship with Eastern Vanguard Forex Limited.
the check would be funded. But on June 28, 2001, the check was dishonored because
it was drawn against insufficient funds.
On July 14, 2001, complainant charged Paul Desiderio of Estafa and Violation of
Batas Pambansa Bilang 22 at the Prosecutor's Office of Makati. On November 4,
2001, Judge Evelyn Arcaya-Chua of the Metropolitan Trial Court, Makati City,
issued a warrant of arrest against Paul Desiderio.
On March 5, 2002, complainant joined three police officers in serving the warrant of
arrest against Paul Desiderio at No. 10 Damascus St., Northeast Executive Village,
B.F. Homes, Parañaque City. Complainant got the said address of Paul Desiderio
from the documents of FIRI. Although there was a street named Damascus in the said
village, there was no residence numbered "10." The police officers checked the
existence of the said address and resident at the office of the subdivision association.
They were told that no such address existed and that no resident named Paul
Desiderio lived in the subdivision.
Complainant alleged that respondent's act of representing himself to be the legal
officer of FIRI and his assurance that the check he personally delivered to him was
signed in his presence by FIRI Officer Paul Desiderio, when no such person appears
to exist, is clearly fraudulent and violative of the Canons of Professional Ethics.1
Complainant requested the Integrated Bar of the Philippines for a thorough
investigation of respondent as a member of the bar.
In an Order dated January 27, 2003, Director for Bar Discipline Victor C. Fernandez
required respondent to submit his Answer to the Complaint within 15 days from
receipt thereof. Despite receipt of said order as evidenced by a registry return receipt
dated February 3, 2003, respondent did not submit an Answer.
The case was referred to Commissioner Lydia A. Navarro of the Commission on Bar
Discipline for investigation. Respondent failed to appear when the case was set for
hearing on April 8, 2003, despite due notice. Hence, respondent was declared in
default and the case was heard ex parte.
Based on the evidence adduced, Commissioner Navarro reported, thus:
[R]espondent was instrumental in the issuance of the check signed by the alleged
President of FIRI, Paul Desiderio, whose whereabouts could not be located and
whose identity was unknown[,] for respondent was the one who handed personally to
the herein complainant the check which was dishonored due to insufficient funds,
when it was the very respondent, Atty. Palaña, who allegedly assured that the check
was funded. Respondent was also one of those alleged officers of FIRI who assured
complainant that his investment was directly placed in a re[p]utable company.
Further investigation by the complainant with the assistance of NBI officers showed
that respondent Palaña was also linked with Belkin's whose activity was the same as
the FIRI and the SEC has on file the By-Laws of FIRI wherein it was stated that[,] to
wit: "the primary purpose of which is to act as consultant in providing professional
expertise and reliable data analysis related to partnership and so on. And the
corporation shall not engage in the business as securities advisor, stockbroker or
investment house[:] Q. x x x A. First Imperial is prohibited from engaging in foreign
exchange business. Q. x x x A. And despite [. . .] this prohibition, they went on and
engaged in activities which are prohibited specifically in their by-laws" (TSN pages
16 and 17 of July 17, 2003, CBD Case No. 02-1048).
It is evident from the foregoing that respondent and his cohorts violated the main
purpose of the FIRI By-Laws particularly investment or foreign exchange business
which must have been the reason why Yiu was surprised and got mad when
complainant approached him about his dollar savings investment of USD10,000
received by the respondent as Legal Officer and the two (2) other alleged officers
Agustin and Bernal of the FIRI[,] a transaction expressly prohibited by the FIRI By-
laws.2
Respondent was found to have violated Rule 7.03 of Canon 7 of the Code of
Professional Responsibility, which states:
Rule 7.03 – A lawyer shall not engage in conduct that adversely reflects on his fitness
to practice law, nor shall he, whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession.
Commissioner Navarro thus recommended that respondent be suspended from the
practice of law for six (6) months.
In its Resolution dated July 30, 2004, the Board of Governors of the IBP adopted and
approved the Report and Recommendation of the Investigating Commissioner with
the modification that respondent should be suspended from the practice of law for
three (3) years.
This Court agrees with the IBP Board of Governors.
The Code of Professional Responsibility mandates that "a lawyer shall at all times
uphold the integrity and dignity of the legal profession.3 To this end, nothing should
be done by any member of the legal fraternity which might tend to lessen in any
degree the confidence of the public in the fidelity, honesty and integrity of the
profession.4
In this case, respondent assured complainant that by investing his dollar savings with
FIRI, his investment was in a stable company, even if, as it was later discovered, the
by-laws of FIRI prohibited it from engaging in investment or foreign exchange
business and its primary purpose is "to act as consultant in providing professional
expertise and reliable data analysis related to partnership and so on."
When complainant decided to withdraw his investment from FIRI, the first check
given to him in the amount of his total investment bounced. Thereafter, respondent,
as legal officer of FIRI, gave complainant P250,000 in cash and a check
for P329,045.09. Respondent assured complainant that the second check was a "good
check" and that it was signed by Paul Desiderio, the alleged president of FIRI.
However, the said check bounced because it was drawn against insufficient funds,
and the drawer of the check, Paul Desiderio, could not be located when sought to be
served a warrant of arrest since his identity was unknown and his residential address
was found to be non-existent.
Hence, it is clear that the representations of respondent as legal officer of FIRI caused
material damage to complainant. In so doing, respondent failed to uphold the
integrity and dignity of the legal profession and lessened the confidence of the public
in the honesty and integrity of the same.
WHEREFORE, respondent Atty. Antonuitti K. Palaña is found GUILTY of violating
Rule 7.03 of the Code of Professional Responsibility and hereby suspended from the
practice of law for a period of three (3) years effective from receipt of this Resolution,
with a warning that a repetition of the same or similar acts will be dealt with more
severely. Let a copy of this resolution be spread on the records of respondent, and
furnished to all courts, the Integrated Bar of the Philippines, and the Office of the Bar
Confidant.
SO ORDERED.
G.R. No. L-25291 January 30, 1971 Two of the lawyers of the Unions then were Felipe Enaje and Ramon Garcia; the
THE INSULAR LIFE ASSURANCE CO., LTD., EMPLOYEES ASSOCIATION- latter was formerly the secretary-treasurer of the FFW and acting president of the
NATU, FGU INSURANCE GROUP WORKERS and EMPLOYEES Insular Life/FGU unions and the Insular Life Building Employees Association.
ASSOCIATION-NATU, and INSULAR LIFE BUILDING EMPLOYEES Garcia, as such acting president, in a circular issued in his name and signed by him,
ASSOCIATION-NATU, petitioners, tried to dissuade the members of the Unions from disaffiliating with the FFW and
vs. joining the National Association of Trade Unions (NATU), to no avail.
THE INSULAR LIFE ASSURANCE CO., LTD., FGU INSURANCE GROUP, Enaje and Garcia soon left the FFW and secured employment with the Anti-Dummy
JOSE M. OLBES and COURT OF INDUSTRIAL RELATIONS, respondents. Board of the Department of Justice. Thereafter, the Companies hired Garcia in the
Lacsina, Lontok and Perez and Luis F. Aquino for petitioners. latter part of 1956 as assistant corporate secretary and legal assistant in their Legal
Francisco de los Reyes for respondent Court of Industrial Relations. Department, and he was soon receiving P900 a month, or P600 more than he was
Araneta, Mendoza and Papa for other respondents. receiving from the FFW. Enaje was hired on or about February 19, 1957 as personnel
manager of the Companies, and was likewise made chairman of the negotiating panel
CASTRO, J.: for the Companies in the collective bargaining with the Unions.
Appeal, by certiorari to review a decision and a resolution en banc of the Court of In a letter dated September 16, 1957, the Unions jointly submitted proposals to the
Industrial Relations dated August 17, 1965 and October 20, 1965, respectively, in Companies for a modified renewal of their respective collective bargaining contracts
Case 1698-ULP. which were then due to expire on September 30, 1957. The parties mutually agreed
The Insular Life Assurance Co., Ltd., Employees Association-NATU, FGU Insurance and to make whatever benefits could be agreed upon retroactively effective October
Group Workers & Employees Association-NATU, and Insular Life Building 1, 1957.
Employees Association-NATU (hereinafter referred to as the Unions), while still Thereafter, in the months of September and October 1957 negotiations were
members of the Federation of Free Workers (FFW), entered into separate collective conducted on the Union's proposals, but these were snagged by a deadlock on the
bargaining agreements with the Insular Life Assurance Co., Ltd. and the FGU issue of union shop, as a result of which the Unions filed on January 27, 1958 a notice
Insurance Group (hereinafter referred to as the Companies). of strike for "deadlock on collective bargaining." Several conciliation conferences
were held under the auspices of the Department of Labor wherein the conciliators
urged the Companies to make reply to the Unions' proposals en toto so that the said
Unions might consider the feasibility of dropping their demand for union security in
exchange for other benefits. However, the Companies did not make any counter-
proposals but, instead, insisted that the Unions first drop their demand for union
security, promising money benefits if this was done. Thereupon, and prior to April
15, 1958, the petitioner Insular Life Building Employees Association-NATU dropped
this particular demand, and requested the Companies to answer its demands, point by
point, en toto. But the respondent Insular Life Assurance Co. still refused to make any
counter-proposals. In a letter addressed to the two other Unions by the joint
management of the Companies, the former were also asked to drop their union
security demand, otherwise the Companies "would no longer consider themselves
bound by the commitment to make money benefits retroactive to October 1, 1957."
By a letter dated April 17, 1958, the remaining two petitioner unions likewise
dropped their demand for union shop. April 25, 1958 then was set by the parties to
meet and discuss the remaining demands.
From April 25 to May 6, 1958, the parties negotiated on the labor demands but with
no satisfactory result due to a stalemate on the matter of salary increases. On May 13,
1958 the Unions demanded from the Companies final counter-proposals on their
economic demands, particularly on salary increases. Instead of giving counter-
proposals, the Companies on May 15, 1958 presented facts and figures and requested
the Unions to submit a workable formula which would justify their own proposals,
taking into account the financial position of the former. Forthwith the Unions voted to
declare a strike in protest against what they considered the Companies' unfair labor
practices.
Meanwhile, eighty-seven (87) unionists were reclassified as supervisors without
increase in salary nor in responsibility while negotiations were going on in the
Department of Labor after the notice to strike was served on the Companies. These
employees resigned from the Unions.
On May 20, 1958 the Unions went on strike and picketed the offices of the Insular
Life Building at Plaza Moraga.
On May 21, 1958 the Companies through their acting manager and president, the
respondent Jose M. Olbes (hereinafter referred to as the respondent Olbes), sent to
each of the strikers a letter (exhibit A) quoted verbatim as follows:
We recognize it is your privilege both to strike and to conduct picketing.
However, if any of you would like to come back to work voluntarily, you may:
1. Advise the nearest police officer or security guard of your intention to do so.
2. Take your meals within the office.
3. Make a choice whether to go home at the end of the day or to sleep nights at the
office where comfortable cots have been prepared.
4. Enjoy free coffee and occasional movies.
5. Be paid overtime for work performed in excess of eight hours.
6. Be sure arrangements will be made for your families.
The decision to make is yours — whether you still believe in the motives of the strike
or in the fairness of the Management.
The Unions, however, continued on strike, with the exception of a few unionists who
were convinced to desist by the aforesaid letter of May 21, 1958.
From the date the strike was called on May 21, 1958, until it was called off on May
31, 1958, some management men tried to break thru the Unions' picket lines. Thus,
on May 21, 1958 Garcia, assistant corporate secretary, and Vicente Abella, chief of
the personnel records section, respectively of the Companies, tried to penetrate the
picket lines in front of the Insular Life Building. Garcia, upon approaching the picket
line, tossed aside the placard of a picketer, one Paulino Bugay; a fight ensued
between them, in which both suffered injuries. The Companies organized three bus-
loads of employees, including a photographer, who with the said respondent Olbes,
succeeded in penetrating the picket lines in front of the Insular Life Building, thus
causing injuries to the picketers and also to the strike-breakers due to the resistance
offered by some picketers.
Alleging that some non-strikers were injured and with the use of photographs as
evidence, the Companies then filed criminal charges against the strikers with the City
Fiscal's Office of Manila. During the pendency of the said cases in the fiscal's office,
the Companies likewise filed a petition for injunction with damages with the Court of
First Instance of Manila which, on the basis of the pendency of the various criminal
cases against striking members of the Unions, issued on May 31, 1958 an order
restraining the strikers, until further orders of the said court, from stopping, impeding,
obstructing, etc. the free and peaceful use of the Companies' gates, entrance and
driveway and the free movement of persons and vehicles to and from, out and in, of
the Companies' building.
On the same date, the Companies, again through the respondent Olbes, sent
individually to the strikers a letter (exhibit B), quoted hereunder in its entirety:
The first day of the strike was last 21 May 1958.
Our position remains unchanged and the strike has made us even more convinced of
our decision.
We do not know how long you intend to stay out, but we cannot hold your positions
open for long. We have continued to operate and will continue to do so with or
without you.
If you are still interested in continuing in the employ of the Group Companies, and if
there are no criminal charges pending against you, we are giving you until 2 June
1958 to report for work at the home office. If by this date you have not yet reported,
we may be forced to obtain your replacement.
Before, the decisions was yours to make.
So it is now.
Incidentally, all of the more than 120 criminal charges filed against the members of
the Unions, except three (3), were dismissed by the fiscal's office and by the courts.
These three cases involved "slight physical injuries" against one striker and "light
coercion" against two others.
At any rate, because of the issuance of the writ of preliminary injunction against them
as well as the ultimatum of the Companies giving them until June 2, 1958 to return to
their jobs or else be replaced, the striking employees decided to call off their strike
and to report back to work on June 2, 1958.
However, before readmitting the strikers, the Companies required them not only to
secure clearances from the City Fiscal's Office of Manila but also to be screened by a
management committee among the members of which were Enage and Garcia. The
screening committee initially rejected 83 strikers with pending criminal charges.
However, all non-strikers with pending criminal charges which arose from the
breakthrough incident were readmitted immediately by the Companies without being
required to secure clearances from the fiscal's office. Subsequently, when practically
all the strikers had secured clearances from the fiscal's office, the Companies
readmitted only some but adamantly refused readmission to 34 officials and members
of the Unions who were most active in the strike, on the ground that they committed
"acts inimical to the interest of the respondents," without however stating the specific
acts allegedly committed. Among those who were refused readmission are Emiliano
Tabasondra, vice president of the Insular Life Building Employees' Association-
NATU; Florencio Ibarra, president of the FGU Insurance Group Workers &
Employees Association-NATU; and Isagani Du Timbol, acting president of the
Insular Life Assurance Co., Ltd. Employees Association-NATU. Some 24 of the
above number were ultimately notified months later that they were being dismissed
retroactively as of June 2, 1958 and given separation pay checks computed under
Rep. Act 1787, while others (ten in number) up to now have not been readmitted
although there have been no formal dismissal notices given to them.
On July 29, 1958 the CIR prosecutor filed a complaint for unfair labor practice
against the Companies under Republic Act 875. The complaint specifically charged
the Companies with (1) interfering with the members of the Unions in the exercise of
their right to concerted action, by sending out individual letters to them urging them
to abandon their strike and return to work, with a promise of comfortable cots, free
coffee and movies, and paid overtime, and, subsequently, by warning them that if
they did not return to work on or before June 2, 1958, they might be replaced; and (2)
discriminating against the members of the Unions as regards readmission to work
after the strike on the basis of their union membership and degree of participation in
the strike.
On August 4, 1958 the Companies filed their answer denying all the material
allegations of the complaint, stating special defenses therein, and asking for the
dismissal of the complaint.
After trial on the merits, the Court of Industrial Relations, through Presiding Judge
Arsenio Martinez, rendered on August 17, 1965 a decision dismissing the Unions'
complaint for lack of merit. On August 31, 1965 the Unions seasonably filed their
motion for reconsideration of the said decision, and their supporting memorandum on
September 10, 1965. This was denied by the Court of Industrial Relations en banc in
a resolution promulgated on October 20, 1965.
Hence, this petition for review, the Unions contending that the lower court erred:
1. In not finding the Companies guilty of unfair labor practice in sending out
individually to the strikers the letters marked Exhibits A and B;
2. In not finding the Companies guilty of unfair labor practice for discriminating
against the striking members of the Unions in the matter of readmission of employees
after the strike;
3. In not finding the Companies guilty of unfair labor practice for dismissing officials
and members of the Unions without giving them the benefit of investigation and the
opportunity to present their side in regard to activities undertaken by them in the
legitimate exercise of their right to strike; and
4. In not ordering the reinstatement of officials and members of the Unions, with full
back wages, from June 2, 1958 to the date of their actual reinstatement to their usual
employment.
I. The respondents contend that the sending of the letters, exhibits A and B,
constituted a legitimate exercise of their freedom of speech. We do not agree. The
said letters were directed to the striking employees individually — by registered
special delivery mail at that — without being coursed through the Unions which were
representing the employees in the collective bargaining.
The act of an employer in notifying absent employees individually during a strike
following unproductive efforts at collective bargaining that the plant would be
operated the next day and that their jobs were open for them should they want to
come in has been held to be an unfair labor practice, as an active interference with the
right of collective bargaining through dealing with the employees individually instead
of through their collective bargaining representatives. (31 Am. Jur. 563, citing NLRB
v. Montgomery Ward & Co. [CA 9th] 133 F2d 676, 146 ALR 1045)
Indeed, it is an unfair labor practice for an employer operating under a collective
bargaining agreement to negotiate or to attempt to negotiate with his employees
individually in connection with changes in the agreement. And the basis of the
prohibition regarding individual bargaining with the strikers is that although the union
is on strike, the employer is still under obligation to bargain with the union as the
employees' bargaining representative (Melo Photo Supply Corporation vs. National
Labor Relations Board, 321 U.S. 332).
Indeed, some such similar actions are illegal as constituting unwarranted acts of
interference. Thus, the act of a company president in writing letters to the strikers,
urging their return to work on terms inconsistent with their union membership, was
adjudged as constituting interference with the exercise of his employees' right to
collective bargaining (Lighter Publishing, CCA 7th, 133 F2d 621). It is likewise an
act of interference for the employer to send a letter to all employees notifying them to
return to work at a time specified therein, otherwise new employees would be
engaged to perform their jobs. Individual solicitation of the employees or visiting
their homes, with the employer or his representative urging the employees to cease
union activity or cease striking, constitutes unfair labor practice. All the above-
detailed activities are unfair labor practices because they tend to undermine the
concerted activity of the employees, an activity to which they are entitled free from
the employer's molestation.1
Moreover, since exhibit A is a letter containing promises of benefits to the employees
in order to entice them to return to work, it is not protected by the free speech
provisions of the Constitution (NLRB v. Clearfield Cheese Co., Inc., 213 F2d 70).
The same is true with exhibit B since it contained threats to obtain replacements for
the striking employees in the event they did not report for work on June 2, 1958. The
free speech protection under the Constitution is inapplicable where the expression of
opinion by the employer or his agent contains a promise of benefit, or threats, or
reprisal (31 Am. Jur. 544; NLRB vs. Clearfield Cheese Co., Inc., 213 F2d 70; NLRB
vs. Goigy Co., 211 F2d 533, 35 ALR 2d 422).
Indeed, when the respondents offered reinstatement and attempted to "bribe" the
strikers with "comfortable cots," "free coffee and occasional movies," "overtime" pay
for "work performed in excess of eight hours," and "arrangements" for their families,
so they would abandon the strike and return to work, they were guilty of strike-
breaking and/or union-busting and, consequently, of unfair labor practice. It is
equivalent to an attempt to break a strike for an employer to offer reinstatement to
striking employees individually, when they are represented by a union, since the
employees thus offered reinstatement are unable to determine what the consequences
of returning to work would be.
Likewise violative of the right to organize, form and join labor organizations are the
following acts: the offer of a Christmas bonus to all "loyal" employees of a company
shortly after the making of a request by the union to bargain; wage increases given for
the purpose of mollifying employees after the employer has refused to bargain with
the union, or for the purpose of inducing striking employees to return to work; the
employer's promises of benefits in return for the strikers' abandonment of their strike
in support of their union; and the employer's statement, made about 6 weeks after the
strike started, to a group of strikers in a restaurant to the effect that if the strikers
returned to work, they would receive new benefits in the form of hospitalization,
accident insurance, profit-sharing, and a new building to work in.2
Citing paragraph 5 of the complaint filed by the acting prosecutor of the lower court
which states that "the officers and members of the complainant unions decided to call
off the strike and return to work on June 2, 1958 by reason of the injunction issued by
the Manila Court of First Instance," the respondents contend that this was the main
cause why the strikers returned to work and not the letters, exhibits A and B. This
assertion is without merit. The circumstance that the strikers later decided to return to
work ostensibly on account of the injunctive writ issued by the Court of First Instance
of Manila cannot alter the intrinsic quality of the letters, which were calculated, or
which tended, to interfere with the employees' right to engage in lawful concerted
activity in the form of a strike. Interference constituting unfair labor practice will not
cease to be such simply because it was susceptible of being thwarted or resisted, or
that it did not proximately cause the result intended. For success of purpose is not,
and should not, be the criterion in determining whether or not a prohibited act
constitutes unfair labor practice.
The test of whether an employer has interfered with and coerced employees within
the meaning of subsection (a) (1) is whether the employer has engaged in conduct
which it may reasonably be said tends to interfere with the free exercise of
employees' rights under section 3 of the Act, and it is not necessary that there be
direct evidence that any employee was in fact intimidated or coerced by statements of
threats of the employer if there is a reasonable inference that anti-union conduct of
the employer does have an adverse effect on self-organization and collective
bargaining. (Francisco, Labor Laws 1956, Vol. II, p. 323, citing NLRB v. Ford, C.A.,
1948, 170 F2d 735).
Besides, the letters, exhibits A and B, should not be considered by themselves alone
but should be read in the light of the preceding and subsequent circumstances
surrounding them. The letters should be interpreted according to the "totality of
conduct doctrine,"
... whereby the culpability of an employer's remarks were to be evaluated not only on
the basis of their implicit implications, but were to be appraised against the
background of and in conjunction with collateral circumstances. Under this "doctrine"
expressions of opinion by an employer which, though innocent in themselves,
frequently were held to be culpable because of the circumstances under which they
were uttered, the history of the particular employer's labor relations or anti-union bias
or because of their connection with an established collateral plan of coercion or
interference. (Rothenberg on Relations, p. 374, and cases cited therein.)
It must be recalled that previous to the petitioners' submission of proposals for an
amended renewal of their respective collective bargaining agreements to the
respondents, the latter hired Felipe Enage and Ramon Garcia, former legal counsels
of the petitioners, as personnel manager and assistant corporate secretary,
respectively, with attractive compensations. After the notice to strike was served on
the Companies and negotiations were in progress in the Department of Labor, the
respondents reclassified 87 employees as supervisors without increase in salary or in
responsibility, in effect compelling these employees to resign from their unions. And
during the negotiations in the Department of Labor, despite the fact that the
petitioners granted the respondents' demand that the former drop their demand for
union shop and in spite of urgings by the conciliators of the Department of Labor, the
respondents adamantly refused to answer the Unions' demands en toto. Incidentally,
Enage was the chairman of the negotiating panel for the Companies in the collective
bargaining between the former and the Unions. After the petitioners went to strike,
the strikers were individually sent copies of exhibit A, enticing them to abandon their
strike by inducing them to return to work upon promise of special privileges. Two
days later, the respondents, thru their president and manager, respondent Jose M.
Olbes, brought three truckloads of non-strikers and others, escorted by armed men,
who, despite the presence of eight entrances to the three buildings occupied by the
Companies, entered thru only one gate less than two meters wide and in the process,
crashed thru the picket line posted in front of the premises of the Insular Life
Building. This resulted in injuries on the part of the picketers and the strike-
breakers.lâwphî1.ñèt Then the respondents brought against the picketers criminal
charges, only three of which were not dismissed, and these three only for slight
misdemeanors. As a result of these criminal actions, the respondents were able to
obtain an injunction from the court of first instance restraining the strikers from Verily, the above actuations of the respondents before and after the issuance of the
stopping, impeding, obstructing, etc. the free and peaceful use of the Companies' letters, exhibit A and B, yield the clear inference that the said letters formed of the
gates, entrance and driveway and the free movement of persons and vehicles to and respondents scheme to preclude if not destroy unionism within them.
from, out and in, of the Companies' buildings. On the same day that the injunction To justify the respondents' threat to dismiss the strikers and secure replacements for
was issued, the letter, Exhibit B, was sent — again individually and by registered them in order to protect and continue their business, the CIR held the petitioners'
special delivery mail — to the strikers, threatening them with dismissal if they did not strike to be an economic strike on the basis of exhibit 4 (Notice of Strike) which
report for work on or before June 2, 1958. But when most of the petitioners reported states that there was a "deadlock in collective bargaining" and on the strength of the
for work, the respondents thru a screening committee — of which Ramon Garcia was supposed testimonies of some union men who did not actually know the very reason
a member — refused to admit 63 members of the Unions on the ground of "pending for the strike. It should be noted that exhibit 4, which was filed on January 27, 1958,
criminal charges." However, when almost all were cleared of criminal charges by the states, inter alia:
fiscal's office, the respondents adamantly refused admission to 34 officials and union TO: BUREAU OF LABOR RELATIONS
members. It is not, however, disputed that all-non-strikers with pending criminal DEPARTMENT OF LABOR
charges which arose from the breakthrough incident of May 23, 1958 were readmitted MANILA
immediately by the respondents. Among the non-strikers with pending criminal Thirty (30) days from receipt of this notice by the Office, this [sic] unions intends to
charges who were readmitted were Generoso Abella, Enrique Guidote, Emilio go on strike against
Carreon, Antonio Castillo, Federico Barretto, Manuel Chuidian and Nestor Cipriano. THE INSULAR LIFE ASSURANCE CO., LTD.
And despite the fact that the fiscal's office found no probable cause against the Plaza Moraga, Manila
petitioning strikers, the Companies adamantly refused admission to them on the THE FGU INSURANCE GROUP
pretext that they committed "acts inimical to the interest of the respondents," without Plaza Moraga, Manila
stating specifically the inimical acts allegedly committed. They were soon to admit, INSULAR LIFE BUILDING ADMINISTRATION
however, that these alleged inimical acts were the same criminal charges which were Plaza Moraga, Manila .
dismissed by the fiscal and by the courts.. for the following reason: DEADLOCK IN COLLECTIVE BARGAINING...
However, the employees did not stage the strike after the thirty-day period, reckoned
from January 27, 1958. This simply proves that the reason for the strike was not the
deadlock on collective bargaining nor any lack of economic concessions. By letter
dated April 15, 1958, the respondents categorically stated what they thought was the
cause of the "Notice of Strike," which so far as material, reads:
3. Because you did not see fit to agree with our position on the union shop, you filed a
notice of strike with the Bureau of Labor Relations on 27 January 1958, citing
`deadlock in collective bargaining' which could have been for no other issue than the
union shop." (exhibit 8, letter dated April 15, 1958.)
The strike took place nearly four months from the date the said notice of strike was
filed. And the actual and main reason for the strike was, "When it became crystal
clear the management double crossed or will not negotiate in good faith, it is
tantamount to refusal collectively and considering the unfair labor practice in the
meantime being committed by the management such as the sudden resignation of
some unionists and [who] became supervisors without increase in salary or change in
responsibility, such as the coercion of employees, decided to declare the strike." (tsn.,
Oct. 14, 1958, p. 14.) The truth of this assertion is amply proved by the following
circumstances: (1) it took the respondents six (6) months to consider the petitioners'
proposals, their only excuse being that they could not go on with the negotiations if
the petitioners did not drop the demand for union shop (exh. 7, respondents' letter
dated April 7, 1958); (2) when the petitioners dropped the demand for union shop, the
respondents did not have a counter-offer to the petitioners' demands. Sec. 14 of Rep.
Act 875 required the respondents to make a reply to the petitioners' demands within
ten days from receipt thereof, but instead they asked the petitioners to give a "well
reasoned, workable formula which takes into account the financial position of the
group companies." (tsn., Sept. 8, 1958, p. 62; tsn., Feb. 26, 1969, p. 49.)
II. Exhibit H imposed three conditions for readmission of the strikers, namely: (1) the
employee must be interested in continuing his work with the group companies; (2)
there must be no criminal charges against him; and (3) he must report for work on
June 2, 1958, otherwise he would be replaced. Since the evidence shows that all the
employees reported back to work at the respondents' head office on June 2, 1953,
they must be considered as having complied with the first and third conditions.
Our point of inquiry should therefore be directed at whether they also complied with
the second condition. It is not denied that when the strikers reported for work on June
2, 1958, 63 members of the Unions were refused readmission because they had
pending criminal charges. However, despite the fact that they were able to secure
their respective clearances 34 officials and union members were still refused
readmission on the alleged ground that they committed acts inimical to the
Companies. It is beyond dispute, however, that non-strikers who also had criminal
charges pending against them in the fiscal's office, arising from the same incidents
whence the criminal charges against the strikers evolved, were readily readmitted and
were not required to secure clearances. This is a clear act of discrimination practiced
by the Companies in the process of rehiring and is therefore a violation of sec. 4(a)
(4) of the Industrial Peace Act.
The respondents did not merely discriminate against all the strikers in general. They
separated the active from the less active unionists on the basis of their militancy, or
lack of it, on the picket lines. Unionists belonging to the first category were refused
readmission even after they were able to secure clearances from the competent
authorities with respect to the criminal charges filed against them. It is significant to
note in this connection that except for one union official who deserted his union on
the second day of the strike and who later participated in crashing through the picket
lines, not a single union officer was taken back to work. Discrimination undoubtedly
exists where the record shows that the union activity of the rehired strikers has been
less prominent than that of the strikers who were denied reinstatement.
So is there an unfair labor practice where the employer, although authorized by the
Court of Industrial Relations to dismiss the employees who participated in an illegal
strike, dismissed only the leaders of the strikers, such dismissal being evidence of
discrimination against those dismissed and constituting a waiver of the employer's
right to dismiss the striking employees and a condonation of the fault committed by
them." (Carlos and Fernando, Labor and Social Legislation, p. 62, citing Phil. Air
Lines, Inc. v. Phil. Air Lines Emloyees Association, L-8197, Oct. 31, 1958.)
It is noteworthy that — perhaps in an anticipatory effort to exculpate themselves from
charges of discrimination in the readmission of strikers returning to work — the
respondents delegated the power to readmit to a committee. But the respondent Olbes
had chosen Vicente Abella, chief of the personnel records section, and Ramon Garcia,
assistant corporate secretary, to screen the unionists reporting back to work. It is not
difficult to imagine that these two employees — having been involved in unpleasant
incidents with the picketers during the strike — were hostile to the strikers. Needless
to say, the mere act of placing in the hands of employees hostile to the strikers the
power of reinstatement, is a form of discrimination in rehiring.
Delayed reinstatement is a form of discrimination in rehiring, as is having the
machinery of reinstatement in the hands of employees hostile to the strikers, and
reinstating a union official who formerly worked in a unionized plant, to a job in
another mill, which was imperfectly organized. (Morabe, The Law on Strikes, p. 473,
citing Sunshine Mining Co., 7 NLRB 1252; Cleveland Worsted Mills, 43 NLRB 545;
emphasis supplied.)
Equally significant is the fact that while the management and the members of the
screening committee admitted the discrimination committed against the strikers, they
tossed back and around to each other the responsibility for the discrimination. Thus,
Garcia admitted that in exercising for the management the authority to screen the
returning employees, the committee admitted the non-strikers but refused readmission
to the strikers (tsn., Feb. 6, 1962, pp. 15-19, 23-29). Vicente Abella, chairman of the
management's screening committee, while admitting the discrimination, placed the
blame therefor squarely on the management (tsn., Sept. 20, 1960, pp. 7-8, 14-18). But
the management, speaking through the respondent Olbes, head of the Companies,
disclaimed responsibility for the discrimination. He testified that "The decision
whether to accept or not an employee was left in the hands of that committee that had
been empowered to look into all cases of the strikers." (tsn., Sept. 6, 1962, p. 19.)
Of course, the respondents — through Ramon Garcia — tried to explain the basis for
such discrimination by testifying that strikers whose participation in any alleged
misconduct during the picketing was not serious in nature were readmissible, while
those whose participation was serious were not. (tsn., Aug. 4, 1961, pp. 48-49, 56).
But even this distinction between acts of slight misconduct and acts of serious
misconduct which the respondents contend was the basis for either reinstatement or
discharge, is completely shattered upon a cursory examination of the evidence on
record. For with the exception of Pascual Esquillo whose dismissal sent to the other
strikers cited the alleged commission by them of simple "acts of misconduct."
III. Anent the third assignment of error, the record shows that not a single dismissed
striker was given the opportunity to defend himself against the supposed charges
against him. As earlier mentioned, when the striking employees reported back for
work on June 2, 1958, the respondents refused to readmit them unless they first
secured the necessary clearances; but when all, except three, were able to secure and
subsequently present the required clearances, the respondents still refused to take
them back. Instead, several of them later received letters from the respondents in the
following stereotyped tenor:
This will confirm the termination of your employment with the Insular Life-FGU
Insurance Group as of 2 June 1958.
The termination of your employment was due to the fact that you committed acts of
misconduct while picketing during the last strike. Because this may not constitute
sufficient cause under the law to terminate your employment without pay, we are
giving you the amount of P1,930.32 corresponding to one-half month pay for every
year of your service in the Group Company.
Kindly acknowledge receipt of the check we are sending herewith.
Very truly yours,
(Sgd.) JOSE M. OLBES
President, Insurance Life
Acting President, FGU.
The respondents, however, admitted that the alleged "acts of misconduct" attributed
to the dismissed strikers were the same acts with which the said strikers were charged
before the fiscal's office and the courts. But all these charges except three were
dropped or dismissed.
Indeed, the individual cases of dismissed officers and members of the striking unions
do not indicate sufficient basis for dismissal.
Emiliano Tabasondra, vice-president of the petitioner FGU Insurance Group Workers
& Employees Association-NATU, was refused reinstatement allegedly because he did
not report for duty on June 2, 1958 and, hence, had abandoned his office. But the
overwhelming evidence adduced at the trial and which the respondents failed to rebut,
negates the respondents' charge that he had abandoned his job. In his testimony,
corroborated by many others, Tabasondra particularly identified the management men
to whom he and his group presented themselves on June 2, 1958. He mentioned the
respondent Olbes' secretary, De Asis, as the one who received them and later directed
them — when Olbes refused them an audience — to Felipe Enage, the Companies'
personnel manager. He likewise categorically stated that he and his group went to see
Enage as directed by Olbes' secretary. If Tabasondra were not telling the truth, it
would have been an easy matter for the respondents to produce De Asis and Enage —
who testified anyway as witnesses for the respondents on several occasions — to
rebut his testimony. The respondents did nothing of the kind. Moreover, Tabasondra
called on June 21, 1958 the respondents' attention to his non-admission and asked
them to inform him of the reasons therefor, but instead of doing so, the respondents
dismissed him by their letter dated July 10, 1958. Elementary fairness required that
before being dismissed for cause, Tabasondra be given "his day in court."
At any rate, it has been held that mere failure to report for work after notice to return,
does not constitute abandonment nor bar reinstatement. In one case, the U.S. Supreme
Court held that the taking back of six of eleven men constituted discrimination
although the five strikers who were not reinstated, all of whom were prominent in the
union and in the strike, reported for work at various times during the next three days,
but were told that there were no openings. Said the Court:
... The Board found, and we cannot say that its finding is unsupported, that, in taking
back six union men, the respondent's officials discriminated against the latter on
account of their union activities and that the excuse given that they did not apply until
after the quota was full was an afterthought and not the true reason for the
discrimination against them. (NLRB v. Mackay Radio & Telegraph Co., 304 U.S.
333, 58 Sup. Ct. 904, 82 L. Ed. 1381) (Mathews, Labor Relations and the Law, p.
725, 728)
The respondents' allegation that Tabasondra should have returned after being refused
readmission on June 2, 1958, is not persuasive. When the employer puts off
reinstatement when an employee reports for work at the time agreed, we consider the
employee relieved from the duty of returning further.
Sixto Tongos was dismissed allegedly because he revealed that despite the fact that
the Companies spent more than P80,000 for the vacation trips of officials, they
refused to grant union demands; hence, he betrayed his trust as an auditor of the
Companies. We do not find this allegation convincing. First, this accusation was
emphatically denied by Tongos on the witness stand. Gonzales, president of one of
the respondent Companies and one of the officials referred to, took a trip abroad in
1958. Exchange controls were then in force, and an outgoing traveller on a combined
business and vacation trip was allowed by the Central Bank, per its Circular 52
(Notification to Authorized Agent Banks) dated May 9, 1952, an allocation of $1,000
or only P2,000, at the official rate of two pesos to the dollar, as pocket money; hence,
this was the only amount that would appear on the books of the Companies. It was
only on January 21, 1962, per its Circular 133 (Notification to Authorized Agent
Banks), that the Central Bank lifted the exchange controls. Tongos could not
therefore have revealed an amount bigger than the above sum. And his competence in
figures could not be doubted considering that he had passed the board examinations
for certified public accountants. But assuming arguendo that Tongos indeed revealed
the true expenses of Gonzales' trip — which the respondents never denied or tried to
disprove — his statements clearly fall within the sphere of a unionist's right to discuss
and advertise the facts involved in a labor dispute, in accordance with section 9(a)(5)
of Republic Act 875 which guarantees the untramelled exercise by striking employees
of the right to give "publicity to the existence of, or the fact involved in any labor
dispute, whether by advertising, speaking, patrolling or by any method not involving
fraud or violence." Indeed, it is not only the right, it is as well the duty, of every
unionist to advertise the facts of a dispute for the purpose of informing all those
affected thereby. In labor disputes, the combatants are expected to expose the truth
before the public to justify their respective demands. Being a union man and one of
the strikers, Tongos was expected to reveal the whole truth on whether or not the
respondent Companies were justified in refusing to accede to union demands. After
all, not being one of the supervisors, he was not a part of management. And his
statement, if indeed made, is but an expression of free speech protected by the
Constitution.
Free speech on both sides and for every faction on any side of the labor relation is to
me a constitutional and useful right. Labor is free ... to turn its publicity on any labor
oppression, substandard wages, employer unfairness, or objectionable working
conditions. The employer, too, should be free to answer and to turn publicity on the
records of the leaders of the unions which seek the confidence of his men ...
(Concurring opinion of Justice Jackson in Thomas v. Collins, 323 U.S. 516, 547, 65
Sup. Ct. 315, 89 L. Ed. 430.) (Mathews, Labor Relations and the Law, p. 591.)
The respondents also allege that in revealing certain confidential information, Tongos
committed not only a betrayal of trust but also a violation of the moral principles and
ethics of accountancy. But nowhere in the Code of Ethics for Certified Public
Accountants under the Revised Rules and Regulations of the Board of Accountancy
formulated in 1954, is this stated. Moreover, the relationship of the Companies with
Tongos was that of an employer and not a client. And with regard to the testimonies
of Juan Raymundo and Antolin Carillo, both vice-presidents of the Trust Insurance
Agencies, Inc. about the alleged utterances made by Tongos, the lower court should
not have given them much weight. The firm of these witnesses was newly established
at that time and was still a "general agency" of the Companies. It is not therefore
amiss to conclude that they were more inclined to favor the respondents rather than
Tongos.
Pacifico Ner, Paulino Bugay, Jose Garcia, Narciso Daño, Vicente Alsol and
Hermenigildo Ramirez, opined the lower court, were constructively dismissed by
non-readmission allegedly because they not only prevented Ramon Garcia, assistant
corporate secretary, and Vicente Abella, chief of the personnel records section of the
Companies, from entering the Companies' premises on May 21, 1958, but they also
caused bruises and abrasions on Garcia's chest and forehead — acts considered
inimical to the interest of the respondents. The Unions, upon the other hand, insist
that there is complete lack of evidence that Ner took part in pushing Garcia; that it
was Garcia who elbowed his way through the picket lines and therefore Ner shouted
"Close up," which the picketers did; and that Garcia tossed Paulino Bugay's placard
and a fight ensued between them in which both suffered injuries. But despite these
conflicting versions of what actually happened on May 21, 1958, there are grounds to
believe that the picketers are not responsible for what happened.lâwphî1.ñèt The
picketing on May 21, 1958, as reported in the police blotter, was peaceful (see Police
blotter report, exh. 3 in CA-G.R. No. 25991-R of the Court of Appeals, where Ner
was acquitted). Moreover, although the Companies during the strike were holding
offices at the Botica Boie building at Escolta, Manila; Tuason Building at San
Vicente Street, Manila; and Ayala, Inc. offices at Makati, Rizal, Garcia, the assistant
corporate secretary, and Abella, the chief of the personnel records section, reported
for work at the Insular Life Building. There is therefore a reasonable suggestion that
they were sent to work at the latter building to create such an incident and have a
basis for filing criminal charges against the petitioners in the fiscal's office and
applying for injunction from the court of first instance. Besides, under the
circumstances the picketers were not legally bound to yield their grounds and
withdraw from the picket lines. Being where the law expects them to be in the
legitimate exercise of their rights, they had every reason to defend themselves and
their rights from any assault or unlawful transgression. Yet the police blotter, about
adverted to, attests that they did not resort to violence.
The heated altercations and occasional blows exchanged on the picket line do not
affect or diminish the right to strike. Persuasive on this point is the following
commentary: .
We think it must be conceded that some disorder is unfortunately quite usual in any
extensive or long drawn out strike. A strike is essentially a battle waged with
economic weapons. Engaged in it are human beings whose feelings are stirred to the
depths. Rising passions call forth hot words. Hot words lead to blows on the picket
line. The transformation from economic to physical combat by those engaged in the
contest is difficult to prevent even when cool heads direct the fight. Violence of this
nature, however much it is to be regretted, must have been in the contemplation of the
Congress when it provided in Sec. 13 of Act 29 USCA Sec. 163, that nothing therein
should be construed so as to interfere with or impede or diminish in any way the right
to strike. If this were not so, the rights afforded to employees by the Act would indeed
be illusory. We accordingly recently held that it was not intended by the Act that
minor disorders of this nature would deprive a striker of the possibility of
reinstatement. (Republic Steel Corp. v. N. L. R. B., 107 F2d 472, cited in Mathews,
Labor Relations and the Law, p. 378)
Hence the incident that occurred between Ner, et al. and Ramon Garcia was but a
necessary incident of the strike and should not be considered as a bar to
reinstatement. Thus it has been held that:
Fist-fighting between union and non-union employees in the midst of a strike is no
bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Vol. II, p.
855 citing Stackpole Carbon, Co. 6 NLRB 171, enforced 105 F2d 167.)
Furthermore, assuming that the acts committed by the strikers were transgressions of
law, they amount only to mere ordinary misdemeanors and are not a bar to
reinstatement.
In cases involving misdemeanors the board has generally held that unlawful acts are
not bar to reinstatement. (Teller, Labor Disputes and Collective Bargaining, Id., p.
854, citing Ford Motor Company, 23 NLRB No. 28.)
Finally, it is not disputed that despite the pendency of criminal charges against non-
striking employees before the fiscal's office, they were readily admitted, but those
strikers who had pending charges in the same office were refused readmission. The
reinstatement of the strikers is thus in order.
[W]here the misconduct, whether in reinstating persons equally guilty with those
whose reinstatement is opposed, or in other ways, gives rise to the inference that
union activities rather than misconduct is the basis of his [employer] objection, the
Board has usually required reinstatement." (Teller, supra, p. 853, citing the Third
Annual Report of NLRB [1938], p. 211.)
Lastly, the lower Court justified the constructive dismissal of Florencio Ibarra
allegedly because he committed acts inimical to the interest of the respondents when,
as president of the FGU Workers and Employees Association-NATU, he advised the
strikers that they could use force and violence to have a successful picket and that
picketing was precisely intended to prevent the non-strikers and company clients and
customers from entering the Companies' buildings. Even if this were true, the record
discloses that the picket line had been generally peaceful, and that incidents happened
only when management men made incursions into and tried to break the picket line.
At any rate, with or without the advice of Ibarra, picketing is inherently explosive.
For, as pointed out by one author, "The picket line is an explosive front, charged with
the emotions and fierce loyalties of the union-management dispute. It may be marked
by colorful name-calling, intimidating threats or sporadic fights between the pickets
and those who pass the line." (Mathews, Labor Relations and the Law, p. 752). The
picket line being the natural result of the respondents' unfair labor practice, Ibarra's
misconduct is at most a misdemeanor which is not a bar to reinstatement. Besides, the
only evidence presented by the Companies regarding Ibarra's participation in the
strike was the testimony of one Rodolfo Encarnacion, a former member of the board
of directors of the petitioner FGU Insurance Group Workers and Employees Union-
NATU, who became a "turncoat" and who likewise testified as to the union activities
of Atty. Lacsina, Ricardo Villaruel and others (annex C, Decision, p. 27) — another
matter which emphasizes the respondents' unfair labor practice. For under the
circumstances, there is good ground to believe that Encarnacion was made to spy on
the actvities of the union members. This act of the respondents is considered
unjustifiable interference in the union activities of the petitioners and is unfair labor
practice.
It has been held in a great number of decisions at espionage by an employer of union
activities, or surveillance thereof, are such instances of interference, restraint or
coercion of employees in connection with their right to organize, form and join
unions as to constitute unfair labor practice.
... "Nothing is more calculated to interfere with, restrain and coerce employees in the
exercise of their right to self-organization than such activity even where no discharges
result. The information obtained by means of espionage is in valuable to the employer
and can be used in a variety of cases to break a union." The unfair labor practice is
committed whether the espionage is carried on by a professional labor spy or
detective, by officials or supervisory employees of the employer, or by fellow
employees acting at the request or direction of the employer, or an ex-employee..."
(Teller, Labor Disputes and Collective Bargaining, Vol. II, pp. 765-766, and cases
cited.) .
IV. The lower court should have ordered the reinstatement of the officials and
members of the Unions, with full back wages from June 2, 1958 to the date of their
actual reinstatement to their usual employment. Because all too clear from the factual
and environmental milieu of this case, coupled with settled decisional law, is that the
Unions went on strike because of the unfair labor practices committed by the
respondents, and that when the strikers reported back for work — upon the invitation
of the respondents — they were discriminatorily dismissed. The members and
officials of the Unions therefore are entitled to reinstatement with back pay.
[W]here the strike was induced and provoked by improper conduct on the part of an
employer amounting to an 'unfair labor practice,' the strikers are entitled to
reinstatement with back pay. (Rothenberg on Labor Relations, p. 418.)
[A]n employee who has been dismissed in violation of the provisions of the Act is
entitled to reinstatement with back pay upon an adjudication that the discharge was
illegal." (Id., citing Waterman S. S. Corp. v. N. L. R. B., 119 F2d 760; N. L. R. B. v.
Richter's Bakery, 140 F2d 870; N. L. R. B. v. Southern Wood Preserving Co., 135 F.
2d 606; C. G. Conn, Ltd. v. N. L. R. B., 108 F2d 390; N. L. R. B. v. American Mfg.
Co., 106 F2d 61; N. L. R. B. v. Kentucky Fire Brick Co., 99 F2d 99.)
And it is not a defense to reinstatement for the respondents to allege that the positions
of these union members have already been filled by replacements.
[W]here the employers' "unfair labor practice" caused or contributed to the strike or
where the 'lock-out' by the employer constitutes an "unfair labor practice," the
employer cannot successfully urge as a defense that the striking or lock-out
employees position has been filled by replacement. Under such circumstances, if no
job sufficiently and satisfactorily comparable to that previously held by the aggrieved
employee can be found, the employer must discharge the replacement employee, if
necessary, to restore the striking or locked-out worker to his old or comparable
position ... If the employer's improper conduct was an initial cause of the strike, all
the strikers are entitled to reinstatement and the dismissal of replacement employees
wherever necessary; ... . (Id., p. 422 and cases cited.)
A corollary issue to which we now address ourselves is, from what date should the
backpay payable to the unionists be computed? It is now a settled doctrine that
strikers who are entitled to reinstatement are not entitled to back pay during the
period of the strike, even though it is caused by an unfair labor practice. However, if
they offer to return to work under the same conditions just before the strike, the
refusal to re-employ or the imposition of conditions amounting to unfair labor
practice is a violation of section 4(a) (4) of the Industrial Peace Act and the employer
is liable for backpay from the date of the offer (Cromwell Commercial Employees
and Laborers Union vs. Court of Industrial Relations, L-19778, Decision, Sept. 30,
1964, 12 SCRA 124; Id., Resolution on motion for reconsideration, 13 SCRA
258; see also Mathews, Labor Relations and the Law, p. 730 and the cited cases). We
have likewise ruled that discriminatorily dismissed employees must receive backpay
from the date of the act of discrimination, that is, from the date of their discharge
(Cromwell Commercial Employees and Laborers Union vs. Court of Industrial
Relations, supra).
The respondents notified the petitioner strikers to report back for work on June 2,
1958, which the latter did. A great number of them, however, were refused
readmission because they had criminal charges against them pending before the
fiscal's office, although non-strikers who were also facing criminal indictments were
readily readmitted. These strikers who were refused readmission on June 2, 1958 can
thus be categorized as discriminatorily dismissed employees and are entitled to
backpay from said date. This is true even with respect to the petitioners Jose Pilapil,
Paulino Bugay, Jr. and Jose Garcia, Jr. who were found guilty only of misdemeanors
which are not considered sufficient to bar reinstatement (Teller, Labor Disputes and
Collective Bargaining, p. 854), especially so because their unlawful acts arose during
incidents which were provoked by the respondents' men. However, since the
employees who were denied readmission have been out of the service of the
Companies (for more than ten years) during which they may have found other
employment or other means of livelihood, it is only just and equitable that whatever
they may have earned during that period should be deducted from their back wages to
mitigate somewhat the liability of the company, pursuant to the equitable principle
that no one is allowed to enrich himself at the expense of another (Macleod & Co. of
the Philippines v. Progressive Federation of Labor, 97 Phil. 205 [1955]).
The lower court gave inordinate significance to the payment to and acceptance by the
dismissed employees of separation pay. This Court has ruled that while employers
may be authorized under Republic Act 1052 to terminate employment of employees
by serving the required notice, or, in the absence thereof, by paying the required
compensation, the said Act may not be invoked to justify a dismissal prohibited by
law, e.g., dismissal for union activities.
... While Republic Act No. 1052 authorizes a commercial establishment to terminate
the employment of its employee by serving notice on him one month in advance, or,
in the absence thereof, by paying him one month compensation from the date of the
termination of his employment, such Act does not give to the employer a blanket
authority to terminate the employment regardless of the cause or purpose behind such
termination. Certainly, it cannot be made use of as a cloak to circumvent a final order
of the court or a scheme to trample upon the right of an employee who has been the
victim of an unfair labor practice. (Yu Ki Lam, et al. v. Nena Micaller, et al., 99 Phil.
904 [1956].)
Finally, we do not share the respondents' view that the findings of fact of the Court of
Industrial Relations are supported by substantial and credible proof. This Court is not
therefore precluded from digging deeper into the factual milieu of the case (Union of
Philippine Education Employees v. Philippine Education Company, 91 Phil. 93; Lu
Do & Lu Ym Corporation v. Philippine-Land-Air-Sea Labor Union, 11 SCRA 134
[1964]).
V. The petitioners (15 of them) ask this Court to cite for contempt the respondent
Presiding Judge Arsenio Martinez of the Court of Industrial Relations and the
counsels for the private respondents, on the ground that the former wrote the
following in his decision subject of the instant petition for certiorari, while the latter
quoted the same on pages 90-91 of the respondents' brief: .
... Says the Supreme Court in the following decisions:
In a proceeding for unfair labor practice, involving a determination as to whether or
not the acts of the employees concerned justified the adoption of the employer of
disciplinary measures against them, the mere fact that the employees may be able to
put up a valid defense in a criminal prosecution for the same acts, does not erase or
neutralize the employer's right to impose discipline on said employees. For it is
settled that not even the acquittal of an employee of the criminal charge against him
is a bar to the employer's right to impose discipline on its employees, should the act
upon which the criminal charged was based constitute nevertheless an activity
inimical to the employer's interest... The act of the employees now under
consideration may be considered as a misconduct which is a just cause for dismissal.
(Lopez, Sr., et al. vs. Chronicle Publication Employees Ass'n. et al., G.R. No. L-
20179-81, December 28, 1964.) (emphasis supplied)
The two pertinent paragraphs in the above-cited decision * which contained the
underscored portions of the above citation read however as follows:
Differently as regard the dismissal of Orlando Aquino and Carmelito Vicente, we are
inclined to uphold the action taken by the employer as proper disciplinary measure. A
reading of the article which allegedly caused their dismissal reveals that it really
contains an insinuation albeit subtly of the supposed exertion of political pressure by
the Manila Chronicle management upon the City Fiscal's Office, resulting in the non-
filing of the case against the employer. In rejecting the employer's theory that the
dismissal of Vicente and Aquino was justified, the lower court considered the article
as "a report of some acts and omissions of an Assistant Fiscal in the exercise of his
official functions" and, therefore, does away with the presumption of malice. This
being a proceeding for unfair labor practice, the matter should not have been viewed
or gauged in the light of the doctrine on a publisher's culpability under the Penal
Code. We are not here to determine whether the employees' act could stand criminal
prosecution, but only to find out whether the aforesaid act justifies the adoption by
the employer of disciplinary measure against them. This is not sustaining the ruling
that the publication in question is qualified privileged, but even on the assumption
that this is so, the exempting character thereof under the Penal Code does not
necessarily erase or neutralize its effect on the employer's interest which may warrant
employment of disciplinary measure. For it must be remembered that not even the
acquittal of an employee, of the criminal charges against him, is a bar to the
employer's right to impose discipline on its employees, should the act upon which the
criminal charges was based constitute nevertheless an activity inimical to the
employer's interest.
In the herein case, it appears to us that for an employee to publish his "suspicion,"
which actually amounts to a public accusation, that his employer is exerting political
pressure on a public official to thwart some legitimate activities on the employees,
which charge, in the least, would sully the employer's reputation, can be nothing but
an act inimical to the said employer's interest. And the fact that the same was made in
the union newspaper does not alter its deleterious character nor shield or protect a
reprehensible act on the ground that it is a union activity, because such end can be
achieved without resort to improper conduct or behavior. The act of the employees
now under consideration may be considered as a misconduct which is a just cause for
dismissal.** (Emphasis ours)
It is plain to the naked eye that the 60 un-underscored words of the paragraph quoted
by the respondent Judge do not appear in the pertinent paragraph of this Court's
decision in L-20179-81. Moreover, the first underscored sentence in the quoted
paragraph starts with "For it is settled ..." whereas it reads, "For it must be
remembered ...," in this Court's decision. Finally, the second and last underlined
sentence in the quoted paragraph of the respondent Judge's decision, appears not in
the same paragraph of this Court's decision where the other sentence is, but in the
immediately succeeding paragraph.
This apparent error, however, does not seem to warrant an indictment for contempt
against the respondent Judge and the respondents' counsels. We are inclined to
believe that the misquotation is more a result of clerical ineptitude than a deliberate
attempt on the part of the respondent Judge to mislead. We fully realize how saddled
with many pending cases are the courts of the land, and it is not difficult to imagine
that because of the pressure of their varied and multifarious work, clerical errors may
escape their notice. Upon the other hand, the respondents' counsels have the prima
facie right to rely on the quotation as it appears in the respondent Judge's decision, to
copy it verbatim, and to incorporate it in their brief. Anyway, the import of the
underscored sentences of the quotation in the respondent Judge's decision is
substantially the same as, and faithfully reflects, the particular ruling in this Court's
decision, i.e., that "[N]ot even the acquittal of an employee, of the criminal charges
against him, is a bar to the employer's right to impose discipline on its employees,
should the act upon which the criminal charges were based constitute nevertheless an
activity inimical to the employer's interest."
Be that as it may, we must articulate our firm view that in citing this Court's decisions
and rulings, it is the bounden duty of courts, judges and lawyers to reproduce or copy
the same word-for-word and punctuation mark-for-punctuation mark. Indeed, there is
a salient and salutary reason why they should do this. Only from this Tribunal's
decisions and rulings do all other courts, as well as lawyers and litigants, take their
bearings. This is because the decisions referred to in article 8 of the Civil Code which
reads, "Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines," are only those enunciated by this
Court of last resort. We said in no uncertain terms in Miranda, et al. vs. Imperial, et
al. (77 Phil. 1066) that "[O]nly the decisions of this Honorable Court establish
jurisprudence or doctrines in this jurisdiction." Thus, ever present is the danger that if
not faithfully and exactly quoted, the decisions and rulings of this Court may lose
their proper and correct meaning, to the detriment of other courts, lawyers and the
public who may thereby be misled. But if inferior courts and members of the bar
meticulously discharge their duty to check and recheck their citations of authorities
culled not only from this Court's decisions but from other sources and make certain
that they are verbatim reproductions down to the last word and punctuation mark,
appellate courts will be precluded from acting on misinformation, as well as be saved
precious time in finding out whether the citations are correct.
Happily for the respondent Judge and the respondents' counsels, there was no
substantial change in the thrust of this Court's particular ruling which they cited. It is
our view, nonetheless, that for their mistake, they should be, as they are hereby,
admonished to be more careful when citing jurisprudence in the future.
ACCORDINGLY, the decision of the Court of Industrial Relations dated August 17,
1965 is reversed and set aside, and another is entered, ordering the respondents to
reinstate the dismissed members of the petitioning Unions to their former or
comparatively similar positions, with backwages from June 2, 1958 up to the dates of
their actual reinstatements. Costs against the respondents.
NELSON P. COLLANTES, G.R. No. 169604 DEFENSE,
Petitioner, Respondents. March 6, 2007
Present: x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

PUNO, C.J., DECISION

QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ, CHICO-NAZARIO, J.:
CARPIO,
AUSTRIA-MARTINEZ, A decision that has acquired finality becomes immutable and unalterable. A final
- versus - CORONA,* judgment may no longer be modified in any respect, even if the modification is meant
CARPIO MORALES, to correct erroneous conclusions of fact and law; and whether it be made by the court
CALLEJO, SR.,** that rendered it or by the highest court in the land.[1]
AZCUNA,***
TINGA, What would happen, however, if two separate decisions, irreconcilably conflicting
CHICO-NAZARIO, with each other, both attained finality? Quite clearly, to hold that both decisions are
GARCIA, immutable and unalterable would cause not only confusion and uncertainty, but utter
VELASCO, JR., and bewilderment upon the persons tasked to execute these judgments.
NACHURA, JJ.*
HON. COURT OF APPEALS, CIVIL This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
SERVICE COMMISSION and seeking to set aside the Decision[2] dated 10 March 2005 and the
DEPARTMENT OF NATIONAL Promulgated:
Resolution[3] dated 31 August 2005 of the Court of Appeals in CA-G.R. SP No.
78092.
The undisputed facts of this case are summarized by the Court of Appeals:
Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career Executive
Service Eligibility on 29 February 1996. Then President Fidel V. Ramos accorded
him the rank of Career Executive Service Officer (CESO) II on 10 February
1997. More than a year later, he was appointed as Undersecretary for Peace and Order
of the Department of Interior and Local Government (DILG).
With the change of administration, Collantes allegedly received word from persons
close to then President Ejercito Estrada to give up his position so that the President
could unreservedly appoint his key officials. As such, Collantes relinquished his post
at the DILG.
Thereafter, on 1 July 1998, President Estrada appointed Collantes to the controversial
post Undersecretary for Civilian Relations of the Department of National Defense
(DND). As it happened, his stint in the DND was short lived. Collantes was
supposedly ordered by then Secretary Orlando Mercado to renounce his post in favor
of another presidential appointee, General Orlando Soriano. In deference to the
Presidents prerogative, he resigned from office believing that he will soon be given a
new assignment.
Unfortunately, Collantes was not given any other post in the government, as in fact,
he received a letter from President Estrada terminating his services effective 8
February 1999.Consequently, on 24 March 1999, Collantes requested the assistance
of the Career Executive Service Board relative to the termination of his services as
Undersecretary for Civilian Relations of the DND invoking his right to security of
tenure as a CESO.
The termination of Collantes services, notwithstanding, President Estrada accorded
Collantes the highest rank in the CES ranking structure, CESO Rank I, on 17 July
1999. But then, despite this promotion in rank, Collantes did not receive new
appointment, and worse, the President appointed Mr. Edgardo Batenga to the much
coveted position of Undersecretary for Civilian Relations of the DND.
Taking definite action on the matter, Collantes instituted a Petition for Quo Warranto
and Mandamus before Us on 29 January 2001, docketed as C.A. G.R. SP NO.
62874. Collantes maintained that he was constructively dismissed from work, without
any cause and due process of law, and thus, his position in the DND was never
vacated at all. Accordingly, he prayed that the appointment of Mr. Edgardo Batenga
be nullified, and that he be reinstated to his former position with full back
salaries. Notably, Collantes also sought for appointment to a position of equivalent hand, has shown his acceptance of the same by appointing a new person to the
rank commensurate to his CESO Rank I if reinstatement to his former position is no position relinquished by the petitioner.
longer legally feasible.
xxxx
Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes letter-request
issuing Resolution No. 011364, and thereby holding that Collantes relief as Quo warranto, it must be pointed out, is unavailing in the instatnt case, as the public
Undersecretary of DND amounted to illegal dismissal as he was not given another office in question has not been usurped, intruded into or unlawfully held by the
post concomitant to his eligibility. present occupant. Nor does the incumbent undersecretary appear to have done or
suffered an act which forfeits his assumption. (Section 1, Rule 66, 1997 Rules of
Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No. 62874 Civil Procedure). Furthermore, it appears that the action for quo warranto, assuming it
dismissing the Petition for Quo Warranto and Mandamus filed by is available, has already lapsed by prescription, pursuant to Section 11 of the pertinent
Collantes. Significantly, We pronounced: Rule ...

By such actuations of the petitioner, the Court finds that he has (sic) effectively
resigned from his position as Undersecretary of the DND, and the public respondents
are under no compulsion to reinstate him to his old position.
xxxx
In this case, petitioner has undoubtedly shown his intention to relinquish his public
office, and has in fact surrendered such post to the Chief Executive, who, on the other
xxxx
WHEREFORE, premises considered, the instant petition for Quo Warranto and
Mandamus is hereby DISMISSED.
The controversy reached the Supreme Court as G.R. No. 149883. Nevertheless, the
case was considered closed and terminated when Collantes manifested his desire not
to pursue his appeal and withdraw his Petition for Review on Certiorari. Thereafter,
Collantes moved for the execution of CSC Resolution No. 011364, which was
accordingly granted through CSC Resolution No. 020084 dated 15 January
2002 directing the DND to give Collantes a position where his eligibility is
appropriate and to pay his backwages and other benefits from the time of his
termination up to his actual reinstatement.
In a Letter dated 7 February 2002, the Legal Affairs Division of the DND, through
Atty. Leticia A. Gloria, urged the CSC to revisit its Resolutions which were entirely
in conflict with Our 30 August 2001 Decision in C.A. G.R. SP NO. 62874, which has
attained finality pursuant to the Supreme Courts Resolution in G.R. No. 149883.
Consequently, in complete turnabout from its previous stance, the CSC issued
Resolution No. 021482 dated 12 November 2002 declaring that had it been properly
informed that a Petition for Quo Warranto and Mandamus was then pending before
Us, it would have refrained from ruling on Collantes quandary, thus:
WHEREFORE, the Motion for Reconsideration of Assistant Secretary for Legal
Affairs Leticia A. Gloria of the department of National Defense (DND) is hereby
GRANTED and CSC Resolutions Nos. 01-1364 dated August 13, 2001 and 02-0084
dated January 15, 2002 are reversed. Accordingly, pursuant to the decision of the
Court of Appeals, Nelson P. Collantes is deemed effectively resigned from his
position as Undersecretary of the DND.
Forthwith, Collantes moved for a reconsideration of this Resolution, but was denied
by the CSC in the second assailed Resolution No. 030542 dated 5 May 2003.[4]
On 18 July 2003, herein petitioner Collantes then filed a Petition for Certiorari with
the Court of Appeals praying for the reversal of the Civil Service Commission (CSC)
Resolutions No. 021482 and No. 030542. Before the Court of Appeals can decide this
case, however, petitioner was appointed as General Manager of the Philippine
Retirement Authority on 5 August 2004. The Court of Appeals dismissed the Petition
for Certiorari in the assailed 10 March 2005 Decision:
WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No grave abuse of
discretion may be imputed against the Civil Service Commission for rendering
Resolution Nos. 021482 and 030542, dated 12 November 2002 and 5 May 2003,
respectively. No pronouncement as to costs.[5]
The Motion for Reconsideration filed by petitioner was denied in the assailed 31
August 2005 Resolution.[6]
Petitioner filed the present Petition for Review, seeking the reversal of the foregoing
Decision and Resolution of the Court of Appeals. In view of his 5 August
2004appointment, however, petitioners prayer is now limited to seeking the payment
of backwages and other benefits that may have been due him from the time of his
alleged dismissal on 8 February 1999 to his appointment on 5 August 2004. Petitioner
submits the following issues for our consideration:
A.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION IN CA-G.R. NO.
62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE FINAL
AND EXECUTORY JUDGMENT OF THE CIVIL SERVICE COMMISSION
DATED AUGUST 14, 2001.
B.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE CIVIL SERVICE
COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION WHEN IT REVERSED ITS VERY
OWN DECISION WHICH HAS LONG BECOME FINAL AND EXECUTORY
AND IN FLAGRANT VIOLATION OF PETITIONERS RIGHT TO DUE
PROCESS.
C.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION OF THE CIVIL
SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE
REMOVED FROM HIS POSITION AS UNDERSECRETARY OF THE
DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT
TRANSFER TO A POSITION EQUIVALENT IN RANK OR BE REMOVED
THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A
CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO SECURITY
OF TENURE AS A CAREER EXECUTIVE SERVICE ELIGIBLE.[7]
Both petitioner and herein respondents CSC and Department of National Defense
(DND) invoke the doctrine of immutability of final judgments.
Petitioner claims that the 13 August 2001 Resolution of the CSC, which held that
petitioner was illegally removed as Undersecretary of the Department of National
Defense and therefore x x x should be given a position where his eligibility is
appropriate or sufficient, has attained finality. Petitioner adds that, not only has there
been no appeal or motion for reconsideration filed within the allowable periods, the
CSC even granted the Motion for Execution filed by petitioner in its Order dated 15
January 2002. Petitioner thereby invokes our ruling that, before a writ of execution
may issue, there must necessarily be a final judgment or order that disposes of the
action or proceeding.[8] Petitioner also faults the CSC for ruling on a mere letter filed
by Atty. Leticia Gloria of the DND, which petitioner claims is fatally defective for
failure to comply with the procedural due process clause of the Constitution, the
Rules of Court, and the Uniform Rules in Administrative Cases in the Civil Service
which require notice to adverse parties.[9]
Respondents, on the other hand, invoke the same doctrine of immutability of final
judgments, this time with respect to the 30 August 2001 Decision of the Court of
Appeals dismissing the Petition for Quo Warranto and Mandamus filed by
petitioner. This Court of Appeals Decision became final and executory when
petitioner withdrew the Motion for Extension to File a Petition for Review
on Certiorari he filed with this Court.[10]
Forum Shopping, Res Judicata, and Litis Pendentia
Our rules on forum shopping are meant to prevent such eventualities as conflicting
final decisions as in the case at bar. We have ruled that what is important in
determining whether forum shopping exists or not is the vexation caused the courts
and parties-litigants by a party who asks different courts and/or administrative
agencies to rule on the same or related causes and/or grant the same or substantially
the same reliefs, in the process creating the possibility of conflicting decisions being
rendered by the different fora upon the same issues.[11]
More particularly, the elements of forum shopping are: (a) identity of parties or at
least such parties as represent the same interests in both actions; (b) identity of the
rights asserted and the reliefs prayed for, the relief being founded on the same facts;
and (c) the identity of the two preceding particulars, such that any judgment rendered
in the other action will, regardless of which party is successful, amount to res
judicata in the action under consideration.[12]
Forum shopping can be committed in three ways: (1) filing multiple cases based on
the same cause of action and with the same prayer, the previous case not having been
resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple
cases based on the same cause of action and the same prayer, the previous case
having been finally resolved (where the ground for dismissal is res judicata); and (3)
filing multiple cases based on the same cause of action but with different prayers
(splitting of causes of action, where the ground for dismissal is also either litis
pendentia or res judicata).[13] If the forum shopping is not considered willful and
deliberate, the subsequent cases shall be dismissed without prejudice on one of the
two grounds mentioned above. However, if the forum shopping is willful and
deliberate, both (or all, if there are more than two) actions shall be dismissed with
prejudice.[14]
Petitioner disputes respondents claim, and the CSCs ruling,[15] that he had lodged two
separate actions. Petitioner explains that he never filed a case before the CSC. He
merely sought the assistance of the Career Executive Service Board (CESB) in a
letter-request dated 24 March 1999. Said letter-request, petitioner claims, did not ask
for any ruling.
Petitioner claims that, considering that two years had already lapsed without any
response from the CESB, he filed on 23 January 2001 his Petition for Quo
Warranto and Mandamus with the Court of Appeals. Petitioner was surprised when
he learned through the 8 February 2001 letter of the CESB that, on 29 November
2000, it referred petitioners request to the CSC for appropriate action.[16] Petitioner
was not required to submit any pleading in support of his request. Apparently, the
CSC treated the letter-request as a complaint or petition over which it could exercise
its adjudicative powers, as it issued its 13 August 2001 Resolution declaring
petitioner to have been illegally removed as Undersecretary of the DND, and should
therefore be given a position appropriate or sufficient for his eligibility.[17] As stated
above, the Court of Appeals Decision dismissing the Petition for Quo
Warranto and Mandamus was rendered 17 days later, on 30 August 2001. Petitioner
filed with this Court a motion for an extension of time within which to file a Petition
for Review on Certiorari, but he later submitted a Manifestation for the withdrawal of
this motion as he decided not to pursue his appeal. [18] Instead, petitioner filed with the
CSC on 25 October 2001 a Motion for the Issuance of a Writ of Execution,[19] which
the CSC granted on 15 January 2002.[20]
In repeatedly asserting that he did not file two separate actions, petitioner is arguing,
without stating it categorically, that he cannot be held liable for forum
shopping. However, what one cannot do directly cannot be done indirectly. Petitioner
had been aware, through the 8 February 2001 letter of the CESB, that his request for
assistance was referred to the CSC on 29 November 2000 for appropriate
action. From that point on, he knew that two government agencies the CSC and the
Court of Appeals were simultaneously in the process of reaching their respective
decisions on whether petitioner was entitled to reinstatement or to a position
appropriate to his eligibility. Therefore, it cannot be denied that petitioner knew, from
the moment of receipt of the 8 February 2001 letter of the CESB, that he had
effectively instituted two separate cases, and whatever original intention he had for
his letter-request is, by then, forgotten. Petitioner subsequently proceeded to act like a
true forum shopper he abandoned the forum where he could not get a favorable
judgment, and moved to execute the Resolution of the forum where he succeeded.
Petitioners above actuation is, in fact, a violation of his certification against forum
shopping with the Court of Appeals, a ground for dismissal of actions distinct from
forum shopping itself. As petitioner knew from the receipt of the CESB letter that
another claim was pending in a quasi-judicial agency concerning these issues, he was
bound by his certification with the Court of Appeals to report such fact within five
days from his knowledge thereof. This circumstance of being surprised by the
discovery of another pending claim with another court or quasi-judicial agency is the
very situation contemplated by letter (c) in the first paragraph of Section 5, Rule 7 of
the Rules of Court:
Section 5. Certification against forum shopping. The plaintiff or principal party shall
certify under oath in the complaint or other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed thereto and simultaneously filed therewith:
(a) that he has not theretofore commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein; (b) if there is such other
pending action or claim, a complete statement of the present status thereof; and (c) if
he should thereafter learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading has been filed. (Emphases supplied.)
Petitioner, however, further asserts that the issues brought in the Petition
for Certiorari filed with the Court of Appeals on 18 July 2003 and the Petition
for Quo Warrantoand Mandamus filed on 29 January 2001 are distinct, and that the
Decision of the Court of Appeals in the latter cannot constitute res judicata with
respect to the former.[21]Petitioner claims that the issues, remedies and reliefs in the
two cases are different, citing as basis the textbook definitions of quo
warranto, certiorari and mandamus. Petitioner further claims that:
There is a clear distinction between the right of petitioner to the position of
Undersecretary for Civilian Relations and his right to be re-appointed to another
position of equivalent rank, in view of his CESO I status. The former issue may have
been resolved by the Court of Appeals when it ruled that petitioner Collantes had
effectively resigned from his position as Undersecretary of the DND, and the public
respondents are under no compulsion to reinstate him to his old position. The latter
issue, or the right of petitioner Collantes to be given a new assignment fitting to his
CESO I rank, arises from his right to security of tenure as a Career Executive Service
Eligible, and not from his appointment to the DND.[22]
This allegedly clear distinction springs from petitioners claim that he resigned from
his position, but not from his rank as a Career Executive Service Officer
(CESO).Petitioner claims that, as a CESO, there is a great difference between (1)
resigning from ones position and (2) resigning or relinquishing ones rank, as position
is different from ones rank. POSITION refers to the particular or specific office from
which one may be appointed. RANK, on the other hand, refers not to a particular
position but to the class to which one belongs in the hierarchy of authority in an
organization or bureaucracy.[23] Petitioner cites Cuevas v. Bacal[24]:
[S]ecurity of tenure to members of the CES does not extend to the particular positions
to which they may be appointed --- a concept which is applicable only to the first and
second-level employees in the civil service --- but to the rank to which they are
appointed by the President.
xxxx
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. x x x.
and General v. Roco[25]:
In addition, it must be stressed that the security of tenure of employees in the career
executive service (except first and second-level employees in the civil service),
pertains only to rank and not to the office or to the position to which they may be
appointed. Thus, a career executive service officer may be transferred or reassigned
from one position to another without losing his rank which follows him wherever he
is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if
assigned to a CES position with lower salary grade, as he is compensated according
to his CES rank and not on the basis of the position or office he occupies.
While there is indeed a distinction between position and rank, such that a CESO may
be transferred or reassigned from one position to another without losing his rank,
there can be no distinction between resigning from a position and resigning from a
rank. The rank of a CESO is deactivated upon separation from the government
service, which includes the resignation of a CESO from his position. The CESB has
clarified this concept of being in the inactive status in its Resolution No. 554, series
of 2002:
Rule II
xxxx
7. CESO in Inactive Status - is a CESO who no longer occupies a position in the CES
as a result of any of the modes of separation from the government service, provided
that such separation is not due to dismissal from the service for cause.
xxxx
Rule IV
Section 1. Modes of Deactivating a CES Rank. There are three (3) modes by which
the CES Rank of a CESO may be deactivated from the CES:
1. Acceptance of a position by virtue of an appointment outside the
coverage of the CES;
2. Dropping from the rolls of government officials and employees; and
3. Other modes of separation from the CES, provided that separation from
the CES resulting from dismissal from the service for cause and after due process
shall result in the loss of CES rank and shall not be considered as a mode of
deactivation.
xxxx
Sec. 2. Effect of Deactivation of CES Rank. A CESO whose CES rank has been
deactivated by the Board loses all the rights and privileges accorded to him/her by
law on account of his/her CES rank.
Likewise, it would be absurd for us to rule that a civil servant who resigns from his
position can compel the President to appoint him to another position. Such a ruling
would effectively derogate the discretion of the appointing authority,[26] as it will give
the CESO the option to choose which position he or she wants, by the simple
expediency of resigning from the position he or she does not want.
In sum, there is an identity of issues in the two cases which resulted in the two
conflicting final and executory decisions. But while, as stated above, the second
petition can be dismissed on the ground of either res judicata or non-compliance with
the undertakings in petitioners certification against forum shopping, these grounds
can only be invoked when the case is still pending. As petitioner points out, the
Resolution of the CSC had already become final and executory.
The 30 August 2001 Decision of the Court of Appeals, however, has also attained
finality. Hence, we go back to the main issue in this petition: which of the two final
and executory decisions should be given effect, the 30 August 2001 Court of Appeals
Decision dismissing the petitioners Petition for Quo Warranto, or the 13 August 2001
CSC Resolution declaring petitioner Collantes to be illegally removed as
Undersecretary of the DND?
Two Conflicting Final and Executory Decisions
Jurisprudence in the United States offers different solutions to this problem:
Where there have been two former actions in which the claim or demand, fact or
matter sought to be religated has been decided contrarily, the rule that, where there is
an estoppel against an estoppel, it setteth the matter at large has been applied by some
authorities, and in such case both parties may assert their claims anew. Other
authorities have held that, of two conflicting judgments on the same rights of the
same parties, the one which is later in time will prevail, although it has also been held
that the judgment prior in time will prevail. It has been held that a decision of a court
of last resort is binding on the parties, although afterward, in another cause, a
different principle was declared.[27]
There are thus three solutions which we can adopt in resolving the case at bar: the
first is for the parties to assert their claims anew, the second is to determine which
judgment came first, and the third is to determine which of the judgments had been
rendered by a court of last resort.
As there are conflicting jurisprudence on the second solution, it is appropriate for this
Court to adopt either the first or the third solution. The first solution involves
disregarding the finality of the two previous judgments and allowing the parties to
argue on the basis of the merits of the case anew. The third solution merely involves
the determination of which judgment has been rendered by this Court, the court of
last resort in this jurisdiction.
Adopting the third solution will result in the denial of this Petition
for Certiorari. Whereas the finality of the 13 August 2001 CSC Resolution came
about by the failure to file a motion for reconsideration or an appeal within the proper
reglementary periods, the finality of the 30 August 2001 Court of Appeals Decision
was by virtue of the 12 November 2001 Resolution[28] of this Court which declared
the case closed and terminated upon the manifestation of petitioner that he decided
not to pursue his appeal and was thus withdrawing the motion for extension of time to
file a petition for review on certiorari.
The better solution, however, is to let the parties argue the merits of the case anew,
and decide the case on the basis thereof. We can do this either by remanding the case
to a lower court, or by resolving the issues in this disposition. The latter recourse is
more appropriate, for three reasons: (1) all the facts, arguments, and pleadings in
support of the parties contentions are now before us, with the parties advancing the
very same contentions as those in this Petition; (2) a remand to the Court of Appeals
would entail asking the latter to resolve the very same issues it had passed upon
twice; and (3) a remand to the Court of Appeals would only entail another
unnecessary delay in the termination of the case when the case is now ripe for
adjudication before us.
The merits of the case are the focus of petitioners third assignment of error in the
present petition. Petitioner claims that the Court of Appeals committed a grave and
reversible error when it upheld the resolution of the CSC which allegedly effectively
held that petitioner may be removed from his position as Undersecretary of the
Department of National Defense without the concomitant transfer to a position
equivalent in rank or be removed then, be floated perpetually, which is tantamount to
a constructive dismissal, in violation of his right to security of tenure as a career
executive service eligible.[29]
Petitioners arguments presuppose that he had been removed from his position
as Undersecretary of the DND. He, however, did not present any evidence to that
effect, whether in this Petition or in his earlier Petition for Quo
Warranto and Mandamus with the Court of Appeals. If he is implying that he was
removed from office by virtue of his account that he was approached by persons close
to President Joseph Estrada who asked him to relinquish his post, which he did, then
this Petition must fail, for, by his own deliberate deed, he resigned from his position.
There are no special legal effects when a resignation is one of a courtesy
resignation. The mere fact that the President, by himself or through another, requested
for someones resignation does not give the President the obligation to appoint such
person to another position. A courtesy resignation is just as effectual as any other
resignation.There can be no implied promises of another position just because the
resignation was made out of courtesy. Any express promise of another position, on
the other hand, would be void, because there can be no derogation of the discretion of
the appointing power,[30] and because its object is outside the commerce of
man.[31] As held by the Court of Appeals in its 30 August 2001 Decision:
In the first place, petitioner has not established by any quantum of certainty the
veracity of his claim that he was promised an equivalent position in the
government. Assuming, however, that such promise was true, petitioner, as a ranking
member of the bureaucracy, ought to have known that such promise offers no
assurance in law that the same would be complied with. The time-honored rule is that
public office is a public trust, and as such, the same is governed by law, and cannot be
made the subject of personal promises or negotiations by private persons.[32]
WHEREFORE, the present Petition for Review on Certiorari is DENIED. No costs.

SO ORDERED.
EN BANC COURT OF APPEALS Promulgated:
(Special First Division),
OFFICE OF THE OMBUDSMAN G.R. No. 164250 Respondents. September 30, 2005
and DENNIS M. VILLA-IGNACIO, x--------------------------------------------------x
in his capacity as Special Prosecutor, Present:
Office of the Ombudsman, DECISION
Petitioners, DAVIDE, JR., C.J.,
PUNO, CALLEJO, SR., J.:
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO, Before the Court is the petition for review on certiorari filed by the Office of the
SANDOVAL-GUTIERREZ, Ombudsman and Dennis M. Villa-Ignacio, in his capacity as the Special Prosecutor,
CARPIO, Office of the Ombudsman, seeking the reversal of
- versus - AUSTRIA-MARTINEZ, __________________
CORONA, * No part.
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA, the Decision[1] dated June 25, 2004 of the Court of Appeals (CA) in CA-G.R. SP No.
TINGA, 83091. The assailed decision set aside the Order dated March 17, 2004 issued by
CHICO-NAZARIO, and petitioner Special Prosecutor Villa-Ignacio in OMB-C-A-03-0379-J placing
GARCIA,* JJ. respondent Atty. Gil A. Valera, Deputy Commissioner, Office of the Revenue
ATTY. GIL A. VALERA and
Collection Monitoring Group, Bureau of Customs, under preventive suspension for a
period of six months without pay.
Factual and Procedural Antecedents
Respondent Valera was appointed Deputy Commissioner of the Bureau of Customs
by President Gloria Macapagal-Arroyo on July 13, 2001. He took his oath of office
on August 3, 2001 and assumed his post on August 7, 2001. He is in charge of the
Revenue Collection Monitoring Group.
On August 20, 2003, the Office of the Ombudsman received the Sworn Complaint
dated July 28, 2003 filed by then Director Eduardo S. Matillano of the Philippine
National Police Criminal Investigation and Detection Group (PNP-CIDG). In the said
sworn complaint, Director Matillano charged respondent Valera with criminal
offenses involving violation of various provisions of Republic Act (R.A.) No.
3019,[2] the Tariff and Customs Code of the Philippines (TCCP), Executive Order No.
38,[3] Executive Order No. 298[4] and R.A. No. 6713[5] as well as administrative
offenses of Grave Misconduct and Serious Irregularity in the Performance of Duty.
Likewise subject of the same sworn complaint was respondent Valeras brother-in-law
Ariel Manongdo for violation of Section 4 of R.A. No. 3019.
The sworn complaint alleged that:
On January 30, 2002, while in the performance of his official functions, Atty. Gil A.
Valera had compromised the case against the Steel Asia Manufacturing Corporation
in Civil Case No. 01-102504 before Branch 39, RTC, Manila without proper
authority from the Commissioner of the Bureau of Customs in violation of Section
2316 TCCP (Authority of Commission to make Compromise) and without the
approval of the President, in violation of Executive Order No. 156 and Executive
Order No. 38. Such illegal acts of Atty. Gil A. Valera, indeed, caused undue injury to
the government by having deprived the government of its right to collect the legal
interest, surcharges, litigation expenses and damages and gave the Steel Asia
unwarranted benefits in the total uncollected amount of FOURTEEN MILLION
SEVEN HUNDRED SIXTY-TWO THOUSAND FOUR HUNDRED SIXTY-SEVEN
PESOS AND SEVENTY CENTAVOS (P14,762,467.70), which is violative of Sections
3(e) and (g) respectively of RA 3019.
Further investigation disclosed that Atty. Gil A. Valera while being a Bureau of
Customs official directly and indirectly had financial or pecuniary interest in the
CACTUS CARGOES SYSTEMS a brokerage whose line of business or transaction,
in connection with which, he intervenes or takes part in his official capacity by way
of causing the employment of his brother-in-law, Ariel Manongdo, thus, violating
Section 3(h) of RA 3019 and RA 6713 and Section 4, RA 3019 as against Ariel
Manongdo.

Finally, investigation also disclosed that on April 21, 2002 Atty. Gil A. Valera
traveled to Hongkong with his family without proper authority from the Office of the
President in violation of Executive Order No. 298 (foreign travel of government
personnel) dated May 19, 1995, thus, he committed an administrative offense of
Grave Misconduct.[6]
The sworn complaint prayed that:
1) Appropriate preliminary investigation be conducted with the end-in-view of filing
the necessary information before the Sandiganbayan;
2) Pending investigation, Atty. Gil A. Valera be indefinitely suspended from public
office in order to prevent him from further committing acts of irregularity in public
office;
3) This Group be furnished a copy of the Resolution of this (sic) cases.[7]
At about the same time as the filing of the complaint against respondent Valera,
Director Matillano also filed charges against other officials of the Department of
Public Works and Highways (DPWH) and Bureau of Customs. The Philippine Daily
Inquirer featured a news article on them with the title More govt execs flunk lifestyle
check.[8]
Prior to Director Matillanos sworn complaint, criminal and administrative charges
were also filed with the Office of the Ombudsman by Atty. Adolfo Casareo against
respondent Valera. The complaint of Atty. Casareo contained similar allegations as
those in the complaint of Director Matillano in that respondent Valera, without being
duly authorized by the Commissioner of Customs, entered into a compromise
agreement with Steel Asia Manufacturing Corp. in Civil Case No. 01-102504 to the
prejudice of the government.
The cases against respondent Valera before the Ombudsman were docketed as
follows:
OMB-C-C-02-0568-I (For: Violation of Sec. 3(e), R.A. 3019, as amended, and
Section 3604 of the Tariff and Customs Code) entitled Alfredo Casareo v. Gil A.
Valera and Antonio M. Lorenzana
 PNP-CIDG vs. Atty. Gil Valera and Ariel Manongdo and OMB-C-A-0379-J entitled
OMB-C-C-03-0547-J (For: Violation of Sec. 3(e), (g) and (h) of R.A. 3019, as PNP-CIDG vs. Atty. Gil Valera
amended) entitled PNP-CIDG v. Gil A. Valera and Ariel N. Manongdo
DATE : November 12, 2003
OMB-C-A-0379-J (For: Grave Misconduct and Serious Irregularity in the ____________________________________________________________
Performance of Duty) entitled PNP-CIDG v. Gil A. Valera
The undersigned is inhibiting himself in the above-captioned cases. Please act in his
stead and place.
On November 12, 2003, Ombudsman Simeon V. Marcelo issued a
Memorandum[9] inhibiting himself from the foregoing criminal cases as well as the (Sgd.) SIMEON V. MARCELO
related administrative case and directing petitioner Special Prosecutor Villa-Ignacio Tanodbayan
to act in his (the Ombudsmans) stead and place. The said memorandum reads: (Ombudsman)

MEMORANDUM
On March 17, 2004, pursuant to the above memorandum, petitioner Special
TO : HON. DENNIS M. VILLA-IGNACIO Prosecutor Villa-Ignacio, in the administrative case OMB-C-A-0379-J, issued the
Special Prosecutor Order placing respondent Valera under preventive suspension for six months without
Office of the Special Prosecutor pay. In the said order, petitioner Special Prosecutor Villa-Ignacio found that
respondent Valera entered into the compromise agreement with Steel Asia
SUBJECT : OMB-C-C-02-0568-I entitled Alfredo Casareo Manufacturing Corp. in Civil Case No. 01-102504 without being duly authorized to
vs. Gil Valera, et al., CPL No. C-03-1829 entitled do so by the Commissioner of Customs and without the approval of the Secretary of
Finance in violation of Section 2316[10] of the TCCP.

As earlier mentioned, Civil Case No. 01-102504 was a collection suit filed by the
Republic of the Philippines represented by the Bureau of Customs against Steel Asia
Manufacturing Corp. for payment of duties and taxes amounting to P37,195,859.00.
The said amount was allegedly paid by Steel Asia Manufacturing Corp. with spurious
tax credit certificates. In addition to the principal amount, the government likewise
demanded payment of penalty charges (25% thereof), legal interest from date of
demand, litigation expenses and exemplary damages.
Petitioner Special Prosecutor Villa-Ignacio made the finding that by entering into the
said compromise agreement whereby Steel Asia Manufacturing Corp. shall pay the
overdue taxes and duties in thirty (30) monthly installments of P1,239,862 from
January 2002 to June 2004, respondent Valera may have made concessions that may
be deemed highly prejudicial to the government, i.e., waiver of the legal interest from
the amount demanded, penalty charges imposed by law, litigation expenses and
exemplary damages. Further, by the terms of the compromise agreement, respondent
Valera had virtually exonerated Steel Asia Manufacturing Corp. of its fraudulent acts
of using spurious tax credit certificates.
Petitioner Special Prosecutor Villa-Ignacio concluded the Order dated March 17,
2004 by stating that [c]onsidering the strong evidence of guilt of respondent Deputy
Commissioner Valera and the fact that the charges against him consist of Grave
Misconduct and/or Dishonesty which may warrant his removal from the service, it is
hereby declared that the requirements under Section 24 of R.A. No. 6770, in relation
to Sec. 9, Rule III of Administrative Order No. 7, on the Rules of Procedure of the
Office of the Ombudsman, as amended, are present, and placing respondent Deputy
Commissioner Valera under preventive suspension pending administrative
investigation on the matter for a period of six (6) months without pay is clearly
justified.[11]
The decretal portion of the March 17, 2004 Order reads:
WHEREFORE, pursuant to Sec. 24 of R.A. No. 6770, otherwise known as the
Ombudsman Act of 1989, in relation to Sec. 9, Rule III of Administrative Order No.
7, respondent ATTY. GIL A. VALERA, Deputy Commissioner, Office of the
Collection and Monitoring Group, Bureau of Customs, is hereby placed under
preventive suspension for SIX (6) MONTHS WITHOUT PAY.
Pursuant to Sec. 27(1) of R.A. No. 6770, this Order of Preventive Suspension is
deemed immediately effective and executory.
The Honorable Commissioner Antonio M. Bernard, Bureau of Customs, is hereby
directed to implement the Order immediately upon receipt hereof and to promptly
inform this Office of compliance herewith.

Respondent Atty. Gil A. Valera, Deputy Commissioner, Office of the Collection and
Monitoring Group, Bureau of Customs, is hereby ordered to file his counter-affidavit
and other controverting evidence to the complaint, copy of which together with the
annexes, is hereto attached, within ten (10) days from receipt hereof in three (3)
legible copies addressed to the Central Records Division, Office of the Ombudsman,
Ombudsman Building, Agham Road, Government Center, North Triangle, Diliman,
Quezon City, furnishing the complainant with a copy of said counter-affidavit.
Further, respondent is also ordered to submit proof of service of his counter-affidavit
to the complaint, who may file its reply thereto within a period of ten (10) days from
receipt of the same.
Failure to comply as herein directed within the period prescribed by the rules shall be
deemed as a waiver of the right to submit the partys counter-affidavit or reply,
nonetheless, despite said non-filing, the investigation shall proceed pursuant to
existing rules.
This Order is being issued by the undersigned in view of the inhibition of the
Honorable Tanodbayan Simeon Marcelo from his case as contained in a
Memorandum dated 12 November 2003.
SO ORDERED.[12]
Respondent Valera sought reconsideration of the said Order claiming denial of due
process. He averred that he had already submitted his counter-affidavit refuting the
charges leveled against him by the PNP-CIDG way back on November 6, 2003. He
pointed out that Director Matillanos sworn complaint was filed on August 20, 2003
and it was only two months later or on October 22, 2003 that the Ombudsman found
enough basis to proceed with the administrative investigation of the case by requiring
respondent Valera to file his counter-affidavit. He did so on November 6, 2003.
During the said period of two months, the Preliminary Investigation and
Administrative Adjudication Bureau-A (PIAB-A) of the Office of the Ombudsman
did not find enough bases to preventively suspend him. According to respondent
Valera, he was at a loss as to why it was only then (March 17, 2004) that he was
being placed under preventive suspension.
Acting on respondent Valeras motion for reconsideration, petitioner Special
Prosecutor Villa-Ignacio issued the Order dated April 5, 2004 explaining that the
delay in the issuance of the preventive suspension order was due to the inhibition of
the Ombudsman from the case and for which reason, he (petitioner Special Prosecutor
Villa-Ignacio), by virtue of the Memorandum dated November 12, 2003, had to act in
his place and stead. Petitioner Special Prosecutor Villa-Ignacio averred that contrary
to respondent Valeras assertion, his counter-affidavit would not justify the reversal of
the March 17, 2004 Order since he failed to show that he had the requisite authority
from the Commissioner of Customs to enter into the said compromise agreement with
respect to the Steel Asia Manufacturing Corp. case. It was not shown under what
authority and on what basis respondent Valera entered into the said compromise
agreement.
In light of the foregoing ratiocination, petitioner Special Prosecutor Villa-Ignacio
denied respondent Valeras motion for reconsideration. The decretal portion of his
Order dated April 5, 2004 reads:
WHEREFORE, the undersigned finds no cogent reason to reconsider the suspension
order previously issued dated 17 March 2004 but considers the Counter-Affidavit
received by the Office of the Ombudsman 06 November 2003 as sufficient
compliance to the portion of the assailed Order directing him to file his counter-
affidavit. Consequently, the Order insofar as it requires him to file counter-affidavit
contained in the 17 March 200[4] Order is SET ASIDE.[13]
Even before his motion for reconsideration was acted upon, however, respondent
Valera already filed with the Court of Appeals a special civil
action for certiorari and prohibition as he sought to nullify the March 17, 2004 Order
of preventive suspension issued by petitioner Special Prosecutor Villa-Ignacio and to
enjoin Commissioner of Customs Antonio M. Bernardo from implementing the said
Order.
On April 16, 2004, the appellate court heard the parties on oral arguments on the
prayer for injunction. On even date, it issued a temporary restraining order against the
implementation of the preventive suspension order.
On June 25, 2004, the appellate court rendered the assailed Decision setting aside the
March 17, 2004 Order of preventive suspension and directing petitioner Special
Prosecutor Villa-Ignacio to desist from taking any further action in OMB-C-A-03-
0379-J.
In so ruling, the CA held mainly that petitioner Special Prosecutor Villa-Ignacio is
not authorized by law to sign and issue preventive suspension orders. It cited Section
24 of R.A. No. 6770, otherwise known as The Ombudsman Act of 1989, which vests
on the Ombudsman and his Deputy the power to preventively suspend any
government officer or employee under the Ombudsmans authority pending
investigation subject to certain conditions. In relation thereto, Section 5, Article XI of
the Constitution was also cited as it states that the Office of the Ombudsman is
composed of the Ombudsman to be known as the Tanodbayan, one overall Deputy,
and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy
for the military establishment may likewise be appointed.
Relying on these two provisions of law, the CA declared that petitioner Special
Prosecutor Villa-Ignacio has no authority to issue a preventive suspension order since
he is neither the Ombudsman nor one of the Deputy Ombudsmen.
The CA was not persuaded by petitioner Special Prosecutor Villa-Ignacios contention
that his authority to issue the March 17, 2004 Order of preventive suspension could
be found in Section 11(4)(c) of R.A. No. 6770 which provides that the Office of the
Special Prosecutor shall, in addition to those powers expressly enumerated in the said
provision, perform such other duties assigned to it by the Ombudsman. The CA held
that the grant of such power to the Office of the Special Prosecutor is subject to the
condition that it shall be under the supervision and control and upon the authority of
the Ombudsman.
However, according to the CA, by virtue of the Memorandum dated November 12,
2003 of Ombudsman Marcelo where he stated that he was inhibiting himself and
directing petitioner Special Prosecutor Villa-Ignacio to act in his place and stead, the
latter (petitioner Special Prosecutor) officially stepped into the position of the
Ombudsman insofar as the subject case is concerned. In effect, petitioner Special
Prosecutor Villa-Ignacio would act as the Ombudsman. The CA opined that this is not
the kind of duties contemplated under Section 11(4)(c) of R.A. No. 6770.
Ombudsman Marcelos Memorandum dated November 12, 2003 was declared null
and void by the appellate court for the following reasons:
1. The issuance of that kind of a memorandum effectively stretched (or over-
stretched) the limited powers of the special prosecutor under R.A. No. 6770 and the
Constitution;
2. The issuance of that kind of a memorandum has effectively placed the special
prosecutor over and above all of the five (5) deputies of the Ombudsman in terms of
hierarchy with respect to administrative adjudication;
3. To put it lightly, the Ombudsman, in issuing that kind of a memorandum, has,
wittingly or unwittingly, permitted the Office of the Special Prosecutor to perform the
administrative adjudicative powers of the Ombudsman not only to issue preventive
suspension but to perform, without qualification, any and all other administrative
adjudicative powers, duties functions and responsibilities pertaining to the former as
provided under R.A. No. 6770 and the Constitution.[14]
In addition, the CA refuted the finding of petitioner Special Prosecutor Villa-Ignacio
that the evidence of guilt against respondent Valera is strong to warrant his preventive
suspension. The CA proffered the following circumstances as negating the said
finding of petitioner Special Prosecutor Villa-Ignacio: (1) Unlike the other four
government officials who were simultaneously charged with him, respondent Valera
was not immediately placed under preventive suspension; hence, indicating that there
was no strong evidence against him; (2) Petitioner Special Prosecutor Villa-Ignacios
comment filed with the appellate court did not make any reference to respondent
Valeras supposed foreign travel violation which was alleged in the sworn complaint
of Director Matillano; and (3) The admission of petitioner Special Prosecutor Villa-
Ignacios counsel during the oral arguments on the preliminary injunction that the
PIAB-A recommended against placing respondent Valera under preventive
suspension.
Finally, the CA strongly denounced petitioner Special Prosecutor Villa-Ignacio for
issuing the preventive suspension order without even considering respondent Valeras
counter-affidavit and, worse, not knowing that he had already filed it as early as
November 5, 2003. The CA opined that had petitioner Special Prosecutor Villa-
Ignacio duly considered the said counter-affidavit, he would have reached a different
conclusion, i.e., there is no strong evidence against respondent Valera. Further, that
the latter, in entering into the compromise agreement with Steel Asia Manufacturing
Corp., is authorized to do so under Section 2401[15] of the TCCP and Section 2316
thereof, cited by petitioner Special Prosecutor Villa-Ignacio, is inapplicable. The CA
concluded that petitioner Special Prosecutor Villa-Ignacio acted with grave abuse of
discretion in issuing the March 17, 2004 placing respondent Valera under preventive
suspension for six months without pay in connection with the administrative case
OMB-C-A-03-0379-J.
The decretal portion of the decision of the appellate court reads:
WHEREFORE, the petition is hereby GRANTED, and the assailed order of March
17, 2004, issued by respondent Dennis Villa-Ignacio in OMB-C-A-03-0379-J is SET
ASIDE.
Respondent Special Prosecutor is DIRECTED to desist from taking any further action
in OMB-C-A-03-0379-J.
SO ORDERED.[16]
Hence, the recourse to this Court by petitioners Special Prosecutor Villa-Ignacio and
the Office of the Ombudsman.
The Petitioners Case
They submit the following as grounds for the allowance of their petition:
IN ITS DECISION DATED 25 JUNE 2004, THE COURT OF APPEALS
COMMITTED SERIOUS ERROR IN FINDING THAT THE PETITIONER
SPECIAL PROSECUTOR COMMITTED GRAVE ABUSE OF DISCRETION,
AND IN SETTING ASIDE THE MARCH 17, 2004 ORDER OF PREVENTIVE
SUSPENSION ISSUED BY THE PETITIONER SPECIAL PROSECUTOR,
CONSIDERING THAT:
I The petitioners vigorously maintain that no grave abuse of discretion attended the
[PETITIONER] SPECIAL PROSECUTOR ACTED WITH FULL AUTHORITY
CONSIDERING THAT THE OMBUDSMAN EXPRESSLY ASSIGNED TO
[PETITIONER] SPECIAL PROSECUTOR THE SPECIFIC FUNCTION OF
ACTING IN HIS (OMBUDSMANS) PLACE AND STEAD IN OMB-C-A-030379-
J, AND THIS DELEGATION OF AUTHORITY SUFFERS FROM NO VICE OR
DEFECT AND, ON THE CONTRARY, HAS THE FULL MANDATE OF THE
LAW.
II
NO GRAVE ABUSE OF DISCRETION HAS BEEN COMMITTED BY THE
PETITIONERS IN FINDING, AT THAT STAGE, THE EVIDENCE OF GUILT TO
BE STRONG ON THE PART OF PRIVATE RESPONDENT, FOR GRAVE
MISCONDUCT AND/OR DISHONESTY.
III
PRIVATE RESPONDENTS PETITION FILED BEFORE THE COURT A
QUO SHOULD HAVE BEEN DISMISSED FOR VIOLATION OF THE RULE ON
FORUM SHOPPING.[17]
issuance by petitioner Special Prosecutor Villa-Ignacio of the March 17, 2004 Order
placing respondent Valera under preventive
suspension because the Ombudsman, in directing petitioner Special Prosecutor Villa-
Ignacio to act in his place and stead insofar as OMB-C-A-03-0379-J was concerned,
fully clothed the latter with delegated authority to act thereon. Since under Section 24
of R.A. No. 6770, the Ombudsman may preventively suspend respondent Valera in
the subject administrative case, it follows that with the delegation of his authority to
petitioner Special Prosecutor Villa-Ignacio, he had full authority to preventively
suspend respondent Valera. Petitioner Special Prosecutor Villa-Ignacio, upon finding
that all the elements for preventive suspension in Section 24 of R.A. No. 6770 are
present, accordingly placed respondent Valera under preventive suspension for six
months without pay in connection with the subject administrative case.
 (4) The Office of the Special Prosecutor shall, under the supervision and control and
The petitioners defend the validity of the Ombudsmans delegation of his authority to upon the authority of the Ombudsman, have the following powers:
petitioner Special Prosecutor Villa-Ignacio with respect to the administrative case
OMB-C-A-03-0379-J contending that: a) the authority to preventively suspend is not
insusceptible to delegation to an alter ego of the Ombudsman; b) the petitioner (c) To perform such other duties assigned to it by the Ombudsman.
Special Prosecutor possessed the necessary qualifications and competence to exercise
the delegated functions; c) no law or rule was violated with the said delegation.[18]
By this provision, the Ombudsman may allegedly validly delegate to the Special
Nothing in Section 24 of R.A. No. 6770 allegedly prohibits the delegation by the Prosecutor such other functions that he cannot, otherwise, perform by himself and
Ombudsman of his authority to preventively suspend to his alter ego. The petitioners that he (the Ombudsman) is not obliged to always make such delegation to the
point out that under R.A. No. 6770, the Special Overall Deputy Ombudsman. In the exercise of quasi-judicial functions, there is no
Prosecutor, like the Deputy Ombudsmen, heads a major office in the Office of the law which mandates that the Ombudsman can only inhibit himself in favor of the
Ombudsman;[19] he is appointed in the same manner as the Deputy Deputy Ombudsmen.
Ombudsmen;[20] he shares the same qualifications[21] and enjoys the same rank and
privilege as the latter.[22] As such, the Special Prosecutor, like any of the other Deputy The petitioners assert that the evidence of respondent Valeras guilt for serious
Ombudsmen, has the competence and capability to preventively suspend any officer administrative infractions is strong. According to them, the facts that have so far been
or employee under the authority of the Ombudsman. established show that respondent Valera entered into the compromise agreement with
Steel Manufacturing Asia Corp. to unduly shield and promote its interests and to the
The petitioners invoke, in particular, Section 11(4)(c) of R.A. No. 6770: prejudice of the government. It is allegedly suspicious that he (respondent Valera)
Sec. 11. Structural Organization. simply allowed the said company to redeem the spurious tax credit certificates with a
30-month staggered payment when sufficient properties of the said company had
already been attached to satisfy not only the P37 million principal amount of taxes
owed by the said company but the penalty charges and damages as well. He further
unjustifiably exonerated the said companys officers of any criminal wrongdoing when
they are conclusively liable for the procurement of these spurious tax credit
certificates. Further, respondent Valera was never authorized by the Customs
Commissioner to enter into such compromise agreement nor was it approved by the
Secretary of Finance as required by Section 2316 of the TCCP. Neither was it
approved by the President of the Philippines as further required by E.O. No. 38.
Respondent Valera thus committed an act of misrepresentation when he signed the
compromise agreement under the clause By authority of the Commissioner.
The petitioners posit that conclusively at the given stage respondent Valera appeared
to have committed Grave Misconduct and Dishonesty to warrant his preventive
suspension. They also aver that the evidence strongly show that respondent Valera
obtained employment for his brother-in-law, Ariel Manongdo, with Cactus Cargo
Systems, Inc., a customs brokerage firm whose business principally involves dealing
on a regular basis with the Bureau of Customs, in contravention of R.A. No. 6713 and
R.A. No. 3019.
To refute the appellate courts statement that there was inordinate delay in the issuance
of the March 17, 2004 Order of preventive suspension, the petitioners explain that the
same was due to, among others, the inhibition of the Ombudsman from the case, the
delay in the transmittal of the case records and the amount of time that it took
petitioner Special Prosecutor Villa-Ignacio to study the recommendation of the PIAB-
A and the divergent recommendation of the Assistant Ombudsman for Preliminary
Investigation, Adjudication and Monitoring Office (PAMO).
Moreover, even if the PIAB-A recommended against placing respondent Valera
under preventive suspension, petitioner Special Prosecutor Villa-Ignacio was not
bound to adopt the same. With respect to respondent Valeras counter-affidavit, the
petitioners insist that the same failed to rebut the strong evidence against him; hence,
justifying his preventive suspension.
Finally, the petitioners fault the appellate court for not dismissing outright respondent
Valeras petition for certiorari. They charge him with violation of the rule on non-
forum shopping as he filed his petition for certiorari with the CA even when his
motion for reconsideration had yet to be acted upon by petitioner Special Prosecutor
Villa-Ignacio.
The Respondents Counter-Arguments
Respondent Valera mainly argues that petitioner Special Prosecutor Villa-Ignacio has
no authority to issue the March 17, 2004 Order placing him under preventive
suspension. While Section 11(4)(c) of R.A. No. 6770 grants the Office of the Special
Prosecutor the power to perform such other duties assigned to it by the Ombudsman,
the performance of such other duties should still be under the supervision and control
and upon the authority of the Ombudsman. Respondent Valera echoes the
ratiocination of the CA that the Memorandum dated November 12, 2003 issued by
Ombudsman Marcelo directing petitioner Special Prosecutor Villa-Ignacio to act in
his place and stead in OMB-C-A-03-0379-J produced the effect of making him
(petitioner Special Prosecutor) step into the position of the Ombudsman. This is not
the kind of assignment of duties contemplated by Section 11(4)(c) of R.A. No. 6770
because, in such a case, the Ombudsmans power of supervision and control over the
Special Prosecutor is undermined.
Respondent Valera submits that the Ombudsmans memorandum designating
petitioner Special Prosecutor Villa-Ignacio to act in his place and stead has destroyed
the hierarchy of command within the Office of the Ombudsman because it put the
Special Prosecutor over and above the Office of the Overall Deputy Ombudsman.
Such designation infringes on Section 11(2) of R.A. No. 6770 which provides that the
Overall Deputy Ombudsman shall oversee and administer the operations of the
different offices under the Office of the Ombudsman. The Overall Deputy
Ombudsman is next in line to the Ombudsman as shown by the fact that he assumes
as Acting Ombudsman in case of vacancy in the Office of the Ombudsman due to
death, resignation, removal or permanent disability of the incumbent Ombudsman.
Respondent Valera stresses that the power to preventively suspend any officer or
employee under the authority of the Ombudsman pending investigation is exclusively
vested on the Ombudsman or his Deputy pursuant to Section 24 of R.A. No. 6770.
Since the Special Prosecutor is not named therein as vested with the said power, then
petitioner Special Prosecutor Villa-Ignacio has no authority to issue a preventive
suspension.
In relation thereto, the Special Prosecutors powers is allegedly limited to the conduct
of preliminary investigation and prosecution of criminal cases within the jurisdiction
of the Sandiganbayan. Respondent Valera cites the enumeration of the Special
Prosecutors powers in Section 11(4) of R.A. No. 6770:
Sec. 11. Structural Organization.
(4) The Office of the Special Prosecutor shall, under the supervision and control and
upon the authority of the Ombudsman, have the following powers:
(a) To conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan;
(b) To enter into plea bargaining agreement; and
(c) To perform such other duties assigned to it by the Ombudsman.
Applying the rule of ejusdem generis, respondent Valera theorizes that since the first
two powers relate to criminal complaints and criminal cases, then the last power to
perform such other duties assigned to it by the Ombudsman can only refer to other
duties related to criminal complaints and criminal cases and not to administrative
complaints, investigation, adjudication and administrative preventive suspension.
While he concedes that the Ombudsman may inhibit himself in certain cases,
respondent Valera is of the view that when the Ombudsman does inhibit himself in an
administrative investigation pending before the Office of the Ombudsman, he may
not designate the Special Prosecutor to act in his place and stead.
Respondent Valera also harps on petitioner Special Prosecutor Villa-Ignacios alleged
failure to consider his (respondent Valeras) counter-affidavit before issuing the
preventive suspension order. This omission coupled with the delay in issuing the
same allegedly renders the March 17, 2004 Order null and void.
On the evidence against him, respondent Valera claims that the same is not strong. He
cites the delay in placing him under preventive suspension as he alleges that the first
complaint involving the Steel Manufacturing Asia Corp. case was filed against him
by Atty. Casareo as early as August 26, 2002. However, it was only on March 17,
2004 that he was placed under preventive suspension by petitioner Special Prosecutor
Villa-Ignacio. The strength of the evidence against him is also belied by the fact that
the PIAB-A recommended against placing him under preventive suspension.
On the procedural point, respondent Valera states that he filed the petition for
certiorari with the CA without awaiting the resolution of his motion for
reconsideration because, at the time, petitioner Special Prosecutor Villa-Ignacio still
had not resolved the same despite the lapse of the period provided by the
Ombudsmans rules of procedure.
Issue
The basic issue for the Courts resolution is whether petitioner Special Prosecutor
Villa-Ignacio has the authority to place respondent Valera under preventive
suspension in connection with the administrative case OMB-C-A-03-0379-J pending
before the Office of the Ombudsman.
The Courts Ruling
The Court holds that the Special Prosecutor has no such authority.
Preliminarily, it is noted that petitioner Special Prosecutor Villa-Ignacio anchors his
authority to conduct the administrative investigation in OMB-C-A-03-0379-J on the
Memorandum dated November 12, 2003 issued by Ombudsman Marcelo inhibiting
himself therefrom and directing petitioner Special Prosecutor Villa-Ignacio to act in
his place and stead.
Significantly, Ombudsman Marcelo did not state in the said memorandum the reason
for his inhibition. On this point, the rule on voluntary inhibition of judges finds
application to the Ombudsman in the performance of his functions particularly in
administrative proceedings like OMB-C-A-03-0379-J. Like judges, the decision on
whether or not to inhibit is admittedly left to the Ombudsmans sound discretion and
conscience.[23] However, again similar to judges, Ombudsman Marcelo has no
unfettered discretion to inhibit himself. The inhibition must be for just and valid
causes.[24] No such cause was proffered by Ombudsman Marcelo for his inhibition in
OMB-C-A-03-0379-J.
The Court shall now proceed to resolve the basic issue of the case.
The Ombudsman, pursuant to his power of
supervision and control over the Special
Prosecutor, may authorize the latter to
conduct administrative investigation
The Office of the Ombudsman is vested by the Constitution with the following
powers, functions and duties:
(1) 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;
(2) Direct, upon complaint or at its own instance, any public official or employee of
the Government, or any subdivision, agency or instrumentality thereof, as well as of
any government-owned and controlled corporation with original charter, to perform
and expedite any act or duty required by law, or to stop, prevent and correct any
abuse or impropriety in the performance of duties;
(3) Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure,
or prosecution, and ensure compliance therewith;
(4) Direct the officer concerned, in any appropriate case, and subject to such
limitations as may be provided by law to furnish it with copies of documents relating
to contracts or transactions entered into by his office involving the disbursement or
use of public funds or properties, and report any irregularity to the Commission on
Audit for appropriate action;
(5) Request any government agency for assistance an information necessary in the Prosecutor, under the supervision and control and upon the authority of the
discharge of its responsibilities, and to examine, if necessary, pertinent and records Ombudsman, the following powers:
and documents;
(a) To conduct preliminary investigation and prosecute criminal cases within the
(6) Publicize matters covered by its investigation when circumstances so warrant and jurisdiction of the Sandiganbayan;
with due prudence;
(b) To enter into plea bargaining agreement; and
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud and
corruption in the Government and make recommendations for their elimination and (c) To perform such other duties assigned to it by the Ombudsman.[28]
the observance of high standards of ethics and efficiency; and
Based on the pertinent provisions of the Constitution and R.A. No. 6770, the powers
(8) Promulgate its rules of procedure and exercise such other powers or perform such of the Ombudsman have generally been categorized into the following: investigatory
functions or duties as may be provided by law.[25] power; prosecutory power; public assistance functions; authority to inquire and obtain
information; and function to adopt, institute and implement preventive
measures.[29] The Ombudsmans investigatory and prosecutory power has been
R.A. No. 6770 was enacted to provide for the functional and structural organization characterized as plenary and unqualified:
of the Office of the Ombudsman. It substantially reiterates the constitutional The power to investigate and to prosecute granted by law to the Ombudsman is
provisions relating to the Office of the Ombudsman. In addition, R.A. No. 6770 plenary and unqualified. It pertains to any act or omission of any public officer or
granted to the Office of the Ombudsman prosecutorial functions[26] and made the employee when such act or omission appears to be illegal, unjust, improper or
Office of the Special Prosecutor an organic component of the Office of the inefficient[30]
Ombudsman.[27] As such, R.A. No. 6770 vests on the Office of the Special
On the other hand, the authority of the Office of the Special Prosecutor has been
characterized as limited:
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated
with the limited authority of the Special Prosecutor under Section 11 of R.A. 6770.
The Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may act only under the supervision and control and upon the
authority of the Ombudsman. Its power to conduct preliminary investigation and
prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the investigatory and prosecutory
power of the Ombudsman to these types of cases. The Ombudsman is mandated by
law to act on all complaints against officers and employees of the government and to
enforce their administrative, civil and criminal liability in every case where the
evidence warrants. To carry out this duty, the law allows him to utilize the personnel
in his office and/or designate any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and
prosecution of certain cases. Those designated or deputized to assist him work under
his supervision and control. The law likewise allows him to direct the Special
Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance
with Section 11(4c) of R.A. 6770.[31]
The Court has consistently held that the Office of the Special Prosecutor is merely a
component of the Office of the Ombudsman and may only act under the supervision
and control and upon authority of the Ombudsman.[32]
Section 38(1), Chapter 7, Book IV of the Administrative Code of 1987 defines
supervision and control thus:
(1) Supervision and Control. Supervision and control shall include authority to act
directly whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units;
determine priorities in the execution of plans and programs; and prescribe standards,
guidelines, plans and programs. Unless a different meaning is explicitly provided in
the specific law governing the relationship of particular agencies, the word control
shall encompass supervision and control as defined in this paragraph.
The power of supervision and control has been likewise explained as follows:
In administrative law, supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the latter fail or neglect
to fulfill them, the former may take such action or step as prescribed by law to make
them perform such duties. Control, on the other hand, means the power of an officer
to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the
latter.[33]
Pursuant to its power of supervision and control, the Office of the Ombudsman is
empowered under Section 15(10) of R.A. No. 6770 to:
(10) Delegate to the Deputies, or its investigators or representatives such authority or
duty as shall ensure the effective exercise or performance of the powers, functions,
and duties herein or hereinafter provided;
Complementary thereto, Section 11(4)(c) thereof requires the latter to:
(c) [p]erform such other duties assigned to it by the Ombudsman.
Hence, under the foregoing provisions, the Ombudsman may delegate his
investigatory function, including the power to conduct administrative investigation, to
the Special Prosecutor.
Section 24 of R.A. No 6770, however, grants
the power to preventively suspend only to the
Ombudsman and the Deputy Ombudsmen
Section 24 of R.A. No. 6770 reads:
Sec. 24. Preventive Suspension. The Ombudsman and 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 observed that R.A. No. 6770 has invariably mentioned the Special Prosecutor
alongside the Ombudsman and/or the Deputy Ombudsmen with respect to the manner
of appointment,[34] qualifications,[35] term of office,[36]
grounds for removal from office,[37] prohibitions and disqualifications[38] and
disclosure of relationship requirement.[39] However, with respect to the grant of the
power to preventively suspend, Section 24 of R.A. No 6770 makes no mention of the
Special Prosecutor. The obvious import of this exclusion is to withhold from the
Special Prosecutor the power to preventively suspend. It is a basic precept of statutory
construction that the express mention of one person, thing, act or consequence
excludes all others as expressed in the familiar maxim expressio unius est exclusio
alterius.[40]
The petitioners contention that since the Special Prosecutor is of the same rank as that
of a Deputy Ombudsman, then the former can rightfully perform all the functions of
the latter, including the power to preventively suspend, is not persuasive. Under civil
service laws, rank classification determines the salary and status of government
officials and employees.[41] Although there is substantial equality in the level of their
respective functions, those occupying the same rank do not necessarily have the same
powers nor perform the same functions.
The Ombudsman and the Deputy Ombudsmen, as they are expressly named in
Section 24 of R.A. No. 6770, have been granted the power to preventively suspend as
the same inheres in their mandate under the Constitution:
Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or
employees of the Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations, and shall, in appropriate
cases, notify the complainants of the action taken and the result thereof.[42]
While R.A. No. 6770 accords the Special Prosecutor the same rank as that of the
Deputy Ombudsmen, Section 24 thereof expressly grants only to the Ombudsman and
the Deputy Ombudsmen the power to place under preventive suspension government
officials and employees under their authority pending an administrative
investigation.[43]
However, if the Ombudsman delegates his authority to conduct administrative
investigation to the Special Prosecutor and the latter finds that the preventive
suspension of the public official or employee subject thereof is warranted, the Special
Prosecutor may recommend to the Ombudsman to place the said public officer or
employee under preventive suspension.
Pertinently, the investigation of OMB-C-A-03-0379-J was initially conducted by the
PIAB-A, a panel composed of two Special Prosecution Officers III[44] and Graft
Investigation and Prosecution Officers II.[45] The said investigating panel submitted to
the Ombudsman the Memorandum dated November 5, 2003 which contained its
initial findings stating in part thus:
After a careful evaluation of the complaint, it appears that the evidence of guilt in the Ignacio could only recommend to the Ombudsman or, in this case because of the
case under review, in the context of Sec. 24, R.A. 6770, are not strong enough to latters inhibition, to the designated Deputy Ombudsman to place respondent Valera
warrant the imposition of preventive suspension of respondent Atty. Gil A. Valera. under preventive suspension.
The evidence on record fall short of the quantum of evidence necessary to establish
the necessary weight to preventively suspend him. However, the Investigating Panel Stated differently, with respect to the conduct of administrative investigation, the
finds enough basis to proceed with the administrative investigation of this case.[46] Special Prosecutors authority, insofar as preventive suspension is concerned, is akin
to that of the PIAB-A, i.e., recommendatory in nature. It bears stressing that the
It appears in the signatory page of the said memorandum that the findings and power to place a public officer or employee under preventive suspension pending an
recommendation therein were reviewed by the Director[47] of the PIAB-A. Further, investigation is lodged only with the Ombudsman or the Deputy Ombudsmen.
the memorandum was, likewise, reviewed by the Assistant
Ombudsman,[48] Preliminary Investigation, Adjudication and Monitoring Office Consequently, petitioner Special Prosecutor Villa-Ignacio had no authority to issue
(PAMO) with the notation recommending disapproval. This demonstrates that in the the March 17, 2004 Order placing respondent Valera under preventive suspension for
conduct of administrative investigation, the PIAB-A exercises merely six months without pay in connection with the administrative case OMB-C-A-03-
recommendatory powers particularly with respect to whether to place the public 0379-J. The appellate court thus correctly nullified and set aside the said assailed
official or employee subject thereof under preventive suspension. order.

Ombudsman Marcelo designated the Special Prosecutor to conduct the administrative
investigation. In the course thereof, petitioner Special Prosecutor Villa-Ignacio found
that the preventive suspension of respondent Valera was warranted under Section 24
of R.A. No. 6770. However, since under the said provision only the Ombudsman or
his Deputy may exercise the power of preventive suspension, petitioner Special
Prosecutor Villa-
Considering the finding that petitioner Special Prosecutor Villa-Ignacio had no
authority to issue the March 17, 2004 preventive suspension order, the resolution of
the issue of whether or not the evidence of respondent Valeras guilt is strong to
warrant his preventive suspension need not be passed upon at this point. Anent
respondent Valeras alleged non-compliance with the rule on non-forum shopping
when he filed the petition for certiorari with the appellate court, suffice it to state that
the appellate court correctly overlooked this procedural lapse. The merits of SO ORDERED.
respondent Valeras case are special circumstances or compelling reasons which
justified the appellate courts relaxing the rule requiring certification on non-forum
shopping.[49]

It is well to mention, at this point, that after the appellate court rendered its decision
nullifying the March 17, 2004 Order of petitioner Special Prosecutor Villa-Ignacio
and directing him to desist from taking any further action in OMB-C-A-03-0379-J,
the said case was next assigned to the Office of the Deputy Ombudsman for the
Military and Other Law Enforcement Offices (MOLEO), headed by Mr. Orlando C.
Casimiro.[50] The hearings in OMB-C-A-03-0379-J were, thus, continued by the
Deputy Ombudsman for MOLEO. On August 30, 2004, a Decision was rendered in
the said administrative case finding petitioner Valera guilty of grave misconduct and
decreeing his dismissal from the service. On appeal, the Court of Appeals affirmed
the decision of the Deputy Ombudsman for MOLEO. Petitioner Valera subsequently
filed a petition for review with this Court assailing the said decision of the appellate
court. The said petition, docketed as G.R. No. 167278, is now pending with the Court.
WHEREFORE, the petition is DENIED. The Decision dated June 25, 2004 of the
Court of Appeals in CA-G.R. SP No. 83091, insofar as it set aside the March 17,
2004 Order issued by petitioner Special Prosecutor Villa-Ignacio in OMB-C-A-03-
0379-J, is AFFIRMED.
G.R. No. L-27396 September 30, 1974
JESUS V. OCCEÑA and SAMUEL C. OCCEÑA, petitioners,
vs.
HON. PAULINO S. MARQUEZ, District Judge, Court of First Instance of Bohol,
Branch I, respondent. I.V. BINAMIRA, Co-Executor, Estate of W.C. Ogan, Sp. Proc.
No. 423, CFI of Bohol, Intervenor.
Jesus V. Occeña and Samuel C. Occeña in their own behalf.
Hon. Paulino S. Marquez for and in his own behalf.
I.V. Binamira for and in his own behalf as intervenor.
ANTONIO, J.:p
In this petition for certiorari with mandamus, petitioners seek (1) to nullify the order
of respondent Judge Paulino S. Marquez of the Court of First Instance of Bohol,
Branch I, in Sp. Proc. No. 423 entitled "In the Matter of the Testate Estate of William
C. Ogan," in relation to petitioners' claim for partial payment of attorney's fees in the
amount of P30,000.00, dated November 2, 1966, fixing at P20,000.00 petitioners'
attorney's fees, "which would cover the period March 1963 to December 1965," and
directing its immediate payment minus the amount of P4,000.00 previously received
by petitioners, and his second order, dated January 12, 1967, denying petitioners'
motion for reconsideration and modifying the November 2, 1966 order by deleting
therefrom the above-quoted phrase; (2) to direct the said court to approve the release
to them as attorney's fees the amount of P30,000.00 minus the amount of P4,000.00
already advanced to them by the executrix; and (3) to allow petitioners to submit
evidence to establish the total attorney's fees to which they are entitled, in case no
agreement thereon is reached between them and the instituted heirs.
The gross value of the estate of the late William C. Ogan subject matter of the probate
proceeding in Sp. Proc. No. 423 is more than P2 million. Petitioners, Atty. Jesus V.
Occeña and Atty. Samuel C. Occeña, are the lawyers for the estate executrix, Mrs.
Necitas Ogan Occeña, and they had been representing the said executrix since 1963,
defending the estate against claims and protecting the interests of the estate. In order
to expedite the settlement of their deceased father's estate, the seven instituted heirs
decided to enter into compromise with the claimants, as a result of which the total
amount of P220,000.00 in cash was awarded to the claimants, including co-executor
Atty. Isabelo V. Binamira, his lawyers and his wife. A partial distribution of
the corpus and income of the estate was made to the heirs in the total amount of
P450,000.00. On November 18, 1966, the estate and inheritance taxes were
completely settled by the executrix and the requisite tax clearance and discharge from
liability was issued by the Commissioner of Internal Revenue.
Petitioners filed a Motion for Partial Payment of Attorneys' Fees, dated November 18,
1965, asking the court to approve payment to them of P30,000.00, as part payment of
their fees for their services as counsel for the executrix since 1963, and to authorize
the executrix to withdraw the amount from the deposits of the estate and pay
petitioners. Three of the heirs, Lily Ogan Peralta, William Ogan, Jr. and Ruth Ogan,
moved to defer consideration of the motion until after the total amounts for the
executrix's fees and the attorney's fees of her counsel shall have been agreed upon by
all the heirs. In July, 1966, five of the seven instituted heirs, namely, Lily Ogan
Peralta, Necitas Ogan Occena, Federico M. Ogan, Liboria Ogan Garcia and Nancy
Ogan Gibson, filed with the court a Manifestation stating that they had no objection
to the release of P30,000.00 to petitioners as partial payment of attorney's fees and
recommending approval of petitioners' motion.
Their first motion dated November 18, 1965 being still unresolved, petitioners filed a
second Motion for Payment of Partial Attorneys' Fees, dated July 5, 1966, praying for
the release to them of the amount of P30,000.00 previously prayed for by them.
Action on the matter was, however, deferred in an order dated August 6, 1966, upon
the request of the Quijano and Arroyo Law Offices in behalf of heirs William Ogan,
Jr. and Ruth Ogan for deferment until after all the instituted heirs shall have agreed in
writing on the total attorney's fees. Petitioners filed a Motion for Reconsideration
under date of September 12, 1966, asking the court to reconsider its deferment order
and praying that payment to them of P30,000.00 be approved on the understanding
that whatever amounts were paid to them would be chargeable against the fees which
they and the instituted heirs might agree to be petitioners' total fees.
On November 2, 1966, respondent Judge issued an order fixing the total fees of
petitioners for the period March, 1963 to December, 1965 at P20,000.00. Petitioners
moved to reconsider that order. On January 12, 1967, respondent issued an order not
only denying petitioners' Motion for Reconsideration but also modifying the original
order by fixing petitioners' fees for the entire testate proceedings at P20,000.00.
Petitioners contend that respondent Judge acted with grave abuse of discretion or in
excess of jurisdiction in fixing the entire attorney's fees to which they are entitled as
counsel for the executrix, and in fixing the said fees in the amount of P20,000.00. The
reasons given by petitioners in support of their contention are: (1) the motion
submitted by petitioners for the court's resolution was only for partied payment of
their attorney's fees, without prejudice to any agreement that might later be reached
between them and the instituted heirs on the question of total attorney's fees, yet
respondent Judge resolved the question of total attorney's fees; (2) considering that
the only question raised by petitioners for the court's determination was that of partial
attorney's fees, they never expected the court to make a ruling on the question of total
attorney's fees; consequently, petitioners did not have the opportunity to prove to total
fees to which they were entitled, and, hence, they were denied due process of law; (3)
of the seven heirs to the estate, five had agreed to petitioners' motion for partial
payment to them of attorney's fees in the amount of P30,000.00, while the remaining
two did not oppose the motion; (4) in his order, respondent Judge stated that he based
the amount of P20,000.00 on the records of the case, but the amount of attorney's fees
to which a lawyer is entitled cannot be determined on the sole basis of the records for
there are other circumstances that should be taken into consideration; and (5) contrary
to respondent Judge's opinion, the mere fact that one of the attorneys for the executrix
is the husband of said executrix, is not a ground for denying the said attorneys the
right to the fees to which they are otherwise entitled.
Only Judge Paulino S. Marquez is named respondent in the present petition, for,
according to petitioners, "no proper party is interested in sustaining the questioned
proceedings in the Lower Court."
In his Answer to the petition, respondent Judge alleged that (a) petitioners' proper
remedy is appeal and not a special civil action, considering that there is already a final
order on the motion for payment of fees; (b) petitioner Atty. Samuel Occeña is the
husband of executrix Necitas Ogan Occeña, hence, Samuel Occeña's pecuniary
interest now goes against the pecuniary interest of the four heirs he is representing in
the special proceeding; (c) one reason why respondent Judge ordered the deletion of
the phrase containing the period March, 1963 to December, 1965 from his November
2, 1966 order is that there are miscellaneous payments appearing in the compromise
agreement and in the executrix's accounting which cover expenses incurred by
petitioners for the estate; (d) co-executor I. V. Binamira should be included as party
respondent to comply with Section 5, Rule 65 of the Revised Rules of Court; and (e)
it is the duty of respondent Judge not to be very liberal to the attorney representing
the executrix, who is at the same time the wife of said counsel and is herself an heir to
a sizable portion of the estate, for respondent Judge's duty is to see to it that the estate
is administered "frugally," "as economically as possible," and to avoid "that a
considerable portion of the estate is absorbed in the process of such division," in order
that there may be a worthy residue for the heirs. As special defenses, respondent
Judge alleged that the seven instituted heirs are indispensable parties in this case;
that mandamus cannot control the actuations of the trial court because they involved
matters of discretion; and that no abuse of discretion can be imputed to respondent
Judge for trying his best to administer the estate frugally.
On the arguments that he had opposed in the lower court petitioners' motion for
payment of partial attorney's fees in the amount of P30,000.00, and that since
petitioners Samuel C. Occeña and Jesus V. Occeña are the husband and father-in-law,
respectively, of executrix Necitas Ogan Occeña, the latter cannot be expected to
oppose petitioners' claims for attorney's fees, thus leaving the co-executor as the lone
party to represent and defend the interests of the estate, Atty. I. V. Binamira, who
claims to be co-executor of the Ogan estate, filed with this Court on July, 1967, a
Motion for Leave to Intervene, which was granted in a resolution of August 9, 1967.
Petitioners filed a Motion for Reconsideration of Resolution of August 9, 1967 and an
Opposition to "Motion for Leave to Intervene," contending that Atty. Binamira
ceased to be a co-executor upon his resignation effective October 29, 1965. On
August 15, 1967, Atty. Binamira filed Intervenor's Opposition to Petition (answer in
intervention) traversing the material averments of the petition.
On August 25, 1967, intervenor filed a Reply to Executrix's Opposition and
Opposition to Exicutrix's Motion for Reconsideration. On September 18, 1967,
intervenor filed Intervenor's Comments on Petitioners' Motion for Reconsideration of
the Resolution dated August 9, 1961. On September 21, 1967, petitioners filed against
intervenor a Petition for Contempt asking this Court to hold intervenor in contempt of
court. We required intervenor to comment thereon. On October 9, 1967, petitioners
filed a Supplemental Petition for Contempt. Invervenor filed on October 20, 1967,
Intervenor's Comments and Counter Petition, asking this Court to dismiss petitioners'
motion for indirect contempt and instead to hold petitioners guilty of indirect
contempt for gross breach of legal ethics. We deferred action on the contempt motion
until the case is considered on the merits. On January 15, 1968. Intervenor I. V.
Binamira filed an Answer to Supplemental Petition. This was followed on February
12, 1968, by another Petition for Contempt, this time against one Generoso L.
Pacquiao for allegedly executing a perjured affidavit dated December 20, 1967, to aid
intervenor I. V. Binamira to escape liability for his deliberate falsehoods, which
affidavit intervenor attached to his Answer to Supplemental Petition. On the same
date, February 12, 1968, petitioners filed against intervenor a Second Supplemental
Petition for Contempt. On February 19, 1968, petitioners filed Petitioners'
Manifestation Re Documentary Evidence Supporting Charges.
We shall now consider the merits of the basic petition and the petitions for contempt.
I procedural due process.
The rule is that when a lawyer has rendered legal services to the executor or
administrator to assist him in the execution of his trust, his attorney's fees may be
allowed as expenses of administration. The estate is, however, not directly liable for
his fees, the liability for payment resting primarily on the executor or administrator. If
the administrator had paid the fees, he would be entitled to reimbursement from the
estate. The procedure to be followed by counsel in order to collect his fees is to
request the administrator to make payment, and should the latter fail to pay, either to
(a) file an action against him in his personal capacity, and not as administrator,1 or (b)
file a petition in the testate or intestate proceedings asking the court, after notice to all
the heirs and interested parties, to direct the payment of his fees as expenses of
administration.2 Whichever course is adopted, the heirs and other persons interested
in the estate will have the right to inquire into the value, of the services of the lawyer
and on the necessity of his employment. In the case at bar, petitioner filed his petition
directly with the probate court.
There is no question that the probate court acts as a trustee of the estate, and as such
trustee it should jealously guard the estate under administration and see to it that it is
wisely and economically administered and not dissipated.3 This rule, however, does
not authorize the court, in the discharge of its function as trustee of the estate, to act
in a whimsical and capricious manner or to fix the amount of fees which a lawyer is
entitled to without according to the latter opportunity to prove the legitimate value of
his services. Opportunity of a party to be heard is admittedly the essence of
What petitioners filed with the lower court was a motion for partial payment of
attorney's fees in the amount of P30,000.00 as lawyers for the executrix for the period
February, 1963, up to the date of filing of the motion on or about November 18, 1965.
Five of the seven heirs had manifested conformity to petitioners' motion, while the
remaining two merely requested deferment of the resolution of the motion "until the
total amount for Executrix's fees and attorney's fees of her counsel is agreed upon by
all the heirs." The court, however, in spite of such conformity, and without affording
petitioners the opportunity to establish how much attorney's fees they are entitled to
for their entire legal services to the executrix, issued an order fixing at P20,000.00
the entire attorney's fees of petitioners.
In his Order of January 12, 1967, respondent Judge explained:
The records of this case are before the Court and the work rendered by Atty. Samuel
Occeña, within each given period, is easily visible from them; his work as revealed by
those records is the factual basis for this Court's orders as to attorney's fees.
Whatever attorney's fees may have been approved by the Court on October 28, 1965
were as a result of compromise and were with the written consent of all the heirs and
of all the signatories of the compromise agreement of October 27, 1965. That is not
so with respect to Atty. Occeña's thirty-thousand peso claim for fees; and so, this
Court, after a view of the record, had to fix it at P20,000.00. The record can reflect
what an attorney of record has done.
In fixing petitioners' attorney's fees solely on the basis of the records of the case,
without allowing petitioners to adduce evidence to prove what is the proper amount
of attorney's fees to which they are entitled for their entire legal services to the estate,
respondent Judge committed a grave abuse of discretion correctable by certiorari.
Evidently, such fees could not be adequately fixed on the basis of the record alone
considering that there are other factors necessary in assessing the fee of a lawyer,
such as: (1) the amount and character of the service rendered; (2) the labor, time and
trouble involved; (3) the nature and importance of the litigation or business in which
the services were rendered; (4) the responsibility imposed; (5) the amount of money
or the value of the property affected by the controversy or involved in the
employment; (6) the skill and experience called for in the performance of the
services; (7) the professional character and social standing of the attorney; and (8) the
results secured, it being a recognized rule that an attorney may properly charge a
much larger fee when it is contingent than when it is not.4
It should be noted that some of the reasons submitted by petitioners in support of their
fees do not appear in the records of the case. For instance, they claim that in
connection with their legal services to the executrix and to the estate, petitioner
Samuel C. Occeña had been travelling from Davao to Tagbilaran from 1965 to
March, 1967, and from Davao to Cebu and Manila from 1963 to March, 1967, and
that in fact he and his family had to stay for almost a year in Dumaguete City. These
claims apparently bear strongly on the labor, time and trouble involved in petitioners'
legal undertaking, and, consequently, should have been subject to a formal judicial
inquiry. Considering, furthermore, that two of the heirs have not given their
conformity to petitioners' motion, the need for a hearing becomes doubly necessary.
This is also the reason why at this stage it would be premature to grant petitioners'
prayer for the release to them of the amount of P30,000.00 as partial payment of their
fees.
II
As stated above, petitioners have filed petitions for indirect contempt of court against
intervenor I. V. Binamira charging the latter of having made false averments in this
Court.
We have carefully considered these charges and the answers of intervenor, and, on
the basis of the evidence, We conclude that intervenor I. V. Binamira has deliberately
made false allegations before this Court which tend to impede or obstruct the
administration of justice, to wit:
1. To bolster his claim that the executrix, without approval of the court, loaned
P100,000.00 to the Bohol Land Transportation Company, Inc., intervenor submitted
as Annex 5 of his Answer to Supplemental Petition a so-called "Real Estate
Mortgage" which he made to appear was signed by Atty. Vicente de la Serna and the
executrix. The certification of the Deputy Clerk of Court (Annex A-Contempt) shows
that what intervenor claims to be a duly executed mortgage is in reality only a
proposed mortgage not even signed by the parties.
2. Intervenor, in his Intervenor's Opposition to Petition, also stated that in December,
1965, the executrix, without the court's approval or of the co-executor's consent, but
with petitioners' consent, loaned P100,000.00 to the Bohol Land Transportation
Company, Inc. out of the estate's funds. The record shows that only P50,000.00 was
loaned to the company to protect the investment of the estate therein, and that the
same was granted pursuant to a joint motion signed among others, by intervenor, and
approved by the court.
3. To discredit petitioner Samuel C. Occeña and his wife, the executrix, intervenor
stated in his Intervenor's Opposition to Petition that less than a month after the loan of
P100,000.00 had been granted to the transportation company, petitioner Samuel C.
Occeña was elected president by directors of his own choosing in the Bohol Land
Transportation Company, Inc., insinuating that in effect the executrix loaned to her
husband the said sum of money. The certification of the corporate secretary of the
Bohol Land Transportation Company, Inc. (Annex D-Contempt) states that petitioner
Samuel C. Occeña was not the president of the company at the time, nor did he act as
president or treasurer thereof, and that the president was Atty. Vicente de la Serna.
This last fact is also shown in intervenor's own Annex 5 of his Answer to
Supplemental Petition.
4. In intervenor's Opposition to this petition for certiorari, he stated that contrary to
the executrix's statement in the 1965 income tax return of the estate that an estate
"income of P90,770.05 was distributed among the heirs in 1965, there was in fact no
such distribution of income. The executrix's project of partition (Annex E-Contempt)
shows that there was a distribution of the 1965 income of the estate.
5. To discredit petitioner and the executrix, intervenor alleged in his Intervenor's
Opposition to Petition that petitioners caused to be filed with the court the executrix's
verified inventory which failed to include as assets of the estate certain loans granted
to petitioner Samuel C. Occeña in the sum of P4,000.00 and to the executrix various
sums totalling P6,000.00. The letters written by the late W. C. Ogan to his daughter,
the executrix (Annexes F, G. and H-Contempt), show that the said sums totalling
P10,000.00 were in reality partly given to her as a gift and partly for the payment of
certain furniture and equipment.
6. Intervenor, in Order to further discredit petitioners and the executrix, stated in his
Reply to Executrix's and Opposition to Executrix's Motion for Reconsideration that
the executrix and petitioners refused to pay and deliver to him all that he was entitled
to under the compromise agreement. The receipt dated October 29, 1965, signed by
intervenor himself (Annex I-Contempt), shows that he acknowledged receipt from
petitioner Samuel C. Occeña, lawyer for the executrix, the sum of P141,000.00 "in
full payment of all claims and fees against the Estate, pursuant to the Agreement
dated October 27, 1965."
7. In his Reply to Executrix's Opposition and Opposition to Executrix's Motion for
Reconsideration, intervenor alleged that he signed Atty. Occeña's prepared receipt
without receiving payment, trusting that Atty. Occeña would pay the amount in full,
but later Atty. Occeña withheld Chartered Bank Check No. 55384 for P8,000.00
drawn in favor of intervenor and P15,000.00 in cash. A receipt signed by intervenor I.
V. Binamira (Annex K-Contempt) shows that he acknowledged receipt of the check
in question in the amount of P8,000-00 "intended for Mrs. Lila Ogan Castillo ... ."
Anent the sum of P15,000.00 in cash, Annex J-Contempt (Reply to the Opposition for
Authority to Annotate Interest, etc. filed by intervenor with the probate court) shows
that intervenor, as movant, himself had alleged that "no check was issued to movant,
but withdrawn amount of P15,000.00 was included in purchasing Manager's check
No. 55398 for the Clerk of Court (deposit) for P75,000.00," for the said amount was
voluntarily extended by intervenor as a favor and gesture of goodwill to form part of
the total cash bond of P75,000.00 deposited with the Clerk of Court, as shown by a
receipt signed by Atty. Samuel C. Occeña (Annex K-11-Contempt) which forms part
of the record in the court below.
8. In his intervenor's Comments and Counter-Petition, intervenor denied the truth of
petitioners' claim that intervenor had voluntarily and willingly extended the sum of
P15,000.00 as a favor and gesture of goodwill to form part of the P75,000.00-deposit.
In the Opposition to Motion of Executrix for Reconsideration of Order of February
19, 1966, dated April 16, 1966 (Annex K-2-Contempt), intervenor had, however,
admitted that "out of the goodness of his heart ... in the nature of help," he had
"willingly extended as a favor and gesture of goodwill" the said sum of P15,000.00.
9. To impugn the claim of petitioner Samuel C. Occeña that he stayed in Dumaguete
City for almost one year to attend to the affairs of the estate, intervenor, in his
intervenor's Opposition to Petition, alleged that said petitioner's stay in Dumaguete
City was not to attend to the affairs of the estate, but to enable him to teach in
Silliman University. The certification of the Director of the personnel office of
Silliman University, dated December 4, 1967 (Annex V-Contempt) is, however, to
the effect that their "records do not show that Atty. Samuel C. Occeña was teaching at
Silliman University or employed in any other capacity in 1963, or at any time before
or after 1963."
The foregoing are only some of the twenty-one instances cited by petitioners which
clearly show that intervenor had deliberately made false allegations in his pleadings.
We find no rule of law or of ethics which would justify the conduct of a lawyer in any
case, whether civil or criminal, in endeavoring by dishonest means to mislead the
court, even if to do so might work to the advantage of his client. The conduct of the
lawyer before the court and with other lawyers should be characterized by candor and
fairness. It is neither candid nor fair for a lawyer to knowingly make false allegations ten (10) days from notice hereof a fine in the sum of Five Hundred Pesos (P500.00).
in a judicial pleading or to misquote the contents of a document, the testimony of a Costs against intervenor.
witness, the argument of opposing counsel or the contents of a decision. Before his Fernando, Barredo, Fernandez and Aquino, JJ., concur.
admission to the practice of law, he took the solemn oath that he will do no falsehood
nor consent to the doing of any in court, nor wittingly or willingly promote or sue any
false, groundless or unlawful suit, and conduct himself as a lawyer with all good
fidelity to courts as well as to his clients. We find that Atty. Binamira, in having
deliberately made these false allegations in his pleadings, has been recreant to his
oath.
The charges contained in the counter-petition for indirect contempt of intervenor I. V.
Binamira against petitioners have not been substantiated by evidence, and they must,
therefore, be dismissed.
We note that no further action was taken on the petition for contempt filed by
petitioners against Generoso L. Pacquiao, who executed the affidavit attached to
intervenor's Answer to Supplemental Petition, the contents of which petitioners claim
to be deliberate falsehoods. The said respondent Pacquiao not having been afforded
an opportunity to defend himself against the contempt charge, the charge must be
dismissed.
WHEREFORE, (1) the petition for certiorari is granted, and the court a quo is
directed to hold a hearing to determine how much the total attorney's fees petitioners
are entitled to, and (2) Atty. Isabelo V. Binamira, who appeared as intervenor in this
case, is hereby declared guilty of contempt and sentenced to pay to this Court within
G.R. No. L-29543 November 29, 1969
GLORIA PAJARES, petitioner-appellant,
vs.
JUDGE ESTRELLA ABAD SANTOS, MUNICIPAL COURT OF MANILA and
UDHARAM BAZAR CO.,respondents-appellees.
Moises C. Nicomedes for petitioner-appellant.
Tomas Lopez Valencia for respondents-appellees.
TEEHANKEE, J.:
We dismiss as frivolous petitioner-appellant's appeal from the lower Court's Order of
dismissal of her petition for a writ of certiorari with prayer for preliminary injunction
against respondent judge's order denying her motion for a bill of particulars as the
defendant in a simple collection case.
The origin of the case is narrated in the Court of Appeals' Resolution dated August
16, 1968 certifying the appeal to this Court as involving purely questions of law:
This is an appeal interposed by petitioner Gloria Pajares from the order dated July 21,
1962 issued by the Court of First Instance of Manila, dismissing her petition
for certiorari with preliminary injunction against respondent Judge Estrella Abad
Santos of the Municipal Court of Manila and respondent Udharam Bazar & Co.
There is no dispute that on April 25, 1962, the Udharam Bazar & Co. sued Gloria
Pajares before the Municipal Court of Manila for recovery of a certain sum of money.
The lawsuit was docketed in the inferior court as Civil Case No. 97309 and was
eventually assigned to the sala of the respondent Judge Abad Santos.
In its complaint the Udharam Bazar & Co. averred, among others, as follows:
"2. That defendant in 1961, ordered from the plaintiff quantities of ready made goods
and delivered to her in good condition and same were already sold, but did not make
the full payment up to the present time;
"3. That defendant is still indebted to the plaintiff in the sum of P354.85, representing
the balance of her account as the value of the said goods, which is already overdue
and payable."
Instead of answering the complaint against her, Gloria Pajares, however, moved for a
bill of particulars praying the inferior court to require the Udharam Bazar & Co. to
itemize the kinds of goods which she supposedly purchased from the said company,
the respective dates they were taken and by whom they were received as well as their
purchase prices, alleging that without this bill she would not be able to meet the
issues raised in the complaint.
After due hearing, the inferior court denied the motion of Gloria Pajares for a bill of
particulars. Her motion for reconsideration having been denied too by the said court,
she then brought the incident on certiorari to the Court of First Instance of Manila,
alleging in support of her petition that in denying her motion for a bill of particulars,
the respondent judge acted in grave abuse of discretion.
But on July 19, 1962, herein respondent Udharam Bazar & Co. filed a motion to
dismiss the petition for a writ of certiorari, as well as the petition for a writ of
preliminary injunction, for the reasons: (1) that the allegations of the complaint filed
by the said company in the inferior court, particularly paragraphs 2 and 3 thereof, are
clear, specific and sufficiently appraise the defendant, now herein petitioner Gloria
Pajares, of the nature of the cause of action against her so as to enable her to prepare
for her defenses; and (2) that things asked for in the motion for a bill of particulars are
evidentiary matters, which are beyond the pale of such bill. Convinced that the said
motion of the company is well founded, the lower court accordingly dismissed the
petition on April 21, 1962.
Her subsequent motion for reconsideration having been similarly denied by the court
below, Gloria Pajares undertook the present appeal to this Court, contending under
her lone assignment of error to maintain her such appeal that the lower court erred in
dismissing her petition for certiorari with preliminary injunction, in its order dated
July 21, 1962, as amended by its order dated August 18, 1962.
The only genuine issues involved in the case at bar are: (1) whether the allegations of
the complaint sufficiently appraise Gloria Pajares of the nature of the cause of action
against her; and (2) whether the items asked for by the said Gloria Pajares in her
motion for a bill of particulars constitute evidentiary matters. To our mind these are
purely legal questions. A perusal of the brief of the parties has shown that no genuine
factual questions are at all involved in this appeal.
It is plain and clear that no error of law, much less any grave abuse of discretion, was
committed by respondent judge in denying appellant's motion for a bill of particulars
in the collection case instituted in the Municipal Court of Manila by private
respondent-appellee for the recovery of her indebtedness of P354.85 representing the
overdue balance of her account for ready-made goods ordered by and delivered to her
in 1961. Appellee's complaint precisely and concisely informed appellant of the
ultimate or essential facts constituting the cause of action against her, in accordance
with the requirements of the Rules of Court.1
It was therefore improper for appellant, through her counsel, to insist on her motion
that appellee as plaintiff "submit a bill of particulars, specifying therein in detail the
goods represented by the alleged amount of P354.85, giving the dates and invoice
numbers on which they were delivered to the defendant, the amount due on each such
invoice and by whom they were received." These particulars sought all concerned
evidentiary matters and do not come within the scope of Rule 12, section 1 of the
Rules of Court which permits a party "to move for a definite statement or for a bill of
particulars of any matter which is not averred with sufficient definiteness or
particularly to enable him to prepare his responsive pleading or to prepare for trial."
Since appellant admittedly was engaged in the business of buying and selling
merchandise at her stall at the Sta. Mesa Market, Quezon City, and appellee was one
of her creditors from whom she used to buy on credit ready made goods for resale,
appellant had no need of the evidentiary particulars sought by her to enable her to
prepare her answer to the complaint or to prepare for trial. These particulars were just
as much within her knowledge as appellee's. She could not logically pretend
ignorance as to the same, for all she had to do was to check and verify her own
records of her outstanding account with appellee and state in her answer whether
from her records the outstanding balance of her indebtedness was in the sum of
P354.85, as claimed by appellee, or in a lesser amount.
The record shows, furthermore, that a month before appellee filed its collection case,
it had written appellant a demand-letter for the payment of her outstanding account in
the said sum of P354.85 within one week. Appellant, through her counsel, wrote
appellee under date of March 23, 1962, acknowledging her said indebtedness but
stating that "Due to losses she has sustained in the operation of her stall, she would
not be able to meet your request for payment of the full amount of P354.85 at once. I
would therefore request you to be kind enough to allow her to continue paying you
P10.00 every 15th and end of the month as heretofore."
No error was therefore committed by the lower court in summarily dismissing
appellant's petition for certiorariagainst respondent judge's order denying her motion
for a bill of particulars, as pretended by appellant in her lone assignment of error.
Well may we apply to this appeal, the words of Mr. Justice J.B.L. Reyes in an
analogous case,2that "the circumstances surrounding this litigation definitely prove
that appeal is frivolous and a plain trick to delay payment and prolong litigation
unnecessarily. Such attitude deserves condemnation, wasting as it does, the time that
the courts could well devote to meritorious cases."
Here, this simple collection case has needlessly clogged the court dockets for over
seven years. Had appellant been but prudently advised by her counsel to confess
judgment and ask from her creditor the reasonable time she needed to discharge her
lawful indebtedness, the expenses of litigation that she has incurred by way of filing
fees in the Court of First Instance, premiums for her appeal bond, appellate court
docket fees, printing of her appellant's brief, and attorney's fees would have been
much more than sufficient to pay off her just debt to appellee. Yet, here she still
remains saddled with the same debt, burdened by accumulated interests, after having
spent uselessly much more than the amount in litigation in this worthless cause.
As we recently said in another case,3 the cooperation of litigants and their attorneys is
needed so that needless clogging of the court dockets with unmeritorious cases may
be avoided. There must be more faithful adherence to Rule 7, section 5 of the Rules
of Court which provides that "the signature of an attorney constitutes a certificate by
him that he has read the pleading and that to the best of his knowledge, information
and belief, there is good ground to support it; and that it is not interposed for delay"
and expressly admonishes that "for a willful violation of this rule an attorney may be
subjected to disciplinary action."
WHEREFORE, the order appealed from is affirmed, and petitioner-appellant's
counsel shall pay treble costs in all instances. This decision shall be noted in the
personal record of the attorney for petitioner-appellant in this Court for future
reference. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Fernando and Barredo, JJ., concur
 The couple lived with the wife's mother at 993 Sto. Cristo Street, Tondo, Manila for
Adm. Case No. 1392 April 2, 1984 more than one year. In the evening of April 13, 1974, when his wife was out of the
PRECIOSA R. OBUSAN, complainant, house, lawyer Obusan asked permission from his mother-in-law to leave the house
vs. and take a vacation in his hometown, Daet, Camarines Norte. Since then, he has never
GENEROSO B. OBUSAN, JR., respondent. returned to the conjugal abode.
Roger Castuciano for complainant. Preciosa immediately started looking for her husband. After much patient
Roemo J. Callejo for respondent. investigation and surveillance, she discovered that he was living and cohabiting with
Natividad in an apartment located at 85-A Felix Manalo Street, Cubao, Quezon City.
AQUINO, J.:ñé+.£ªwph!1 He had brought his car to that place.
This is a disbarment case filed in 1974 by Preciosa Razon against her husband The fact that Obusan and Natividad lived as husband and wife was corroborated by
Generoso B. Obusan, Jr. on the ground of adultery or grossly immoral conduct. He Linda Delfin, their housemaid in 1974; Remedios Bernal, a laundress, and Ernesto
was admitted to the bar in 1968. Bernal, a plumber, their neighbors staying at 94 Felix Manalo Street. The three
In 1967, when Generoso B. Obusan, Jr. was working in the Peoples Homesite and executed the affidavits, Exhibits A, B and F, which were confirmed by their
Housing Corporation, he became acquainted with Natividad Estabillo who testimonies.
represented to him that she was a widow. They had carnal relations. He begot with Romegil Q. Magana, a pook leader, testified that Obusan introduced himself as the
her a son who was born on November 27, 1972. He was named John Obusan (Exh. head of the family (25-30 tsn Nov. 26, 1976). His name is at the head of the barangay
D). Generoso came to know that Natividad's marriage to Tony Garcia was subsisting list (Exh. E, G and H). Nieves Cacnio the owner of the apartment, came to know
or undissolved. Obusan as Mr. Estabillo. She Identified five photographs, Exhibits I to I-D where
Four days after the birth of the child or on December 1, 1972, Generoso, 33, married respondent Obusan appeared as the man wearing eyeglasses.
Preciosa, 37, in a civil ceremony. The marriage was ratified in a religious ceremony Respondent's defense was that his relationship with Natividad was terminated when
held on December 30,1972 (Exh. C and C-1) he married Preciosa. He admitted that from time to time he went to 85-A Felix
Manalo Street but only for the purpose of giving financial assistance to his son, Jun-
Jun. Lawyer Rogelio Panotes, the ninong of Jun-Jun, corroborated respondent's Thus, a lawyer was disbarred when he abandoned his lawful wife and cohabited with
testimony. another woman who had borne him a child. He failed to maintain the highest degree
He denied the testimonies of the maid, the laundress and the plumber. He claims that of morality expected and required of a member of the bar (Toledo vs. Toledo, 117
they were paid witnesses. He declared that he did not live with Natividad. He resided Phil. 768).
with his sister at Cypress Village, San Francisco del Monte, Quezon City. WHEREFORE, respondent is disbarred. His name is stricken off the Roll of
On the other hand, he claimed that he was constrained to leave the conjugal home Attorneys.
because he could not endure the nagging of his wife, their violent quarrels, her SO ORDERED.
absences from the conjugal home (she allegedly went to Baguio, Luneta and San
Andres Street) and her interference with his professional obligations.
The case was investigated by the Office of the Solicitor General. He filed a complaint
for disbarment against the respondent. Obusan did not answer the complaint. He
waived the presentation of additional evidence. His lawyer did not file any
memorandum.
After an examination of the record, we find that the complainant has sustained the
burden of proof. She has proven his abandonment of her and his adulterous relations
with a married woman separated from her own husband.
Respondent was not able to overcome the evidence of his wife that he was guilty of
grossly immoral conduct. Abandoning one's wife and resuming carnal relations with a
former paramour, a married woman, fails within "that conduct which is willful,
flagrant, or shameless, and which shows a moral indifference to the opinion of the
good and respectable members of the community" (7 C.J.S. 959; Arciga vs.
Maniwang Adm. Case No. 1608, August 14, 1981, 106 SCRA 591).