GONZALO S. GO, JR., Petitioner, vs. COURT OF APPEALS and OFFICE OF THE PRESIDENT, Respondents. D E C I S I O N VELASCO, JR., J .: Assailed in this Petition for Certiorari 1 under Rule 65 are the Resolutions dated August 17, 2005 2 and January 31, 2006 3 of the Court of Appeals (CA) in CA-G.R. SP No. 90665. The facts are undisputed. Petitioner Gonzalo S. Go, Jr. (Go) was appointed in 1980 as Hearing Officer III of the Board of Transportation (BOT), then the governments land transportation franchising and regulating agency, with a salary rate of PhP 16,860 per annum. 4 On June 19, 1987, Executive Order No. (EO) 202 5 was issued creating, within the Department of Transportation and Communications (DOTC), the Land Transportation Franchising and Regulatory Board (LTFRB) to replace the BOT. The issuance placed the LTFRB under the administrative control and supervision of the DOTC Secretary. 6
On February 1, 1990, the DOTC Secretary extended Go a promotional appointment as Chief Hearing Officer (Chief, Legal Division), with a salary rate of PhP 151,800 per annum. 7 The Civil Service Commission (CSC) later approved this permanent appointment. 8 In her Certification 9 dated October 27, 2005, LTFRB Administrative Division Chief Cynthia G. Angulo stated that the promotion was to the position of Attorney VI, Salary Grade (SG)-26, obviously following budgetary circulars allocating SG-26 to division chief positions. The instant controversy started when the Department of Budget and Management (DBM), by letter 10 of March 13, 1991, informed the then DOTC Secretary of the erroneous classification in the Position Allocation List (PAL) of the DBM of two positions in his department, one in the LTFRB and, the other, in the Civil Aeronautics Board (CAB). The error, according to the DBM, stemmed from the fact that division chief positions in quasi-judicial or regulatory agencies, whose decisions are immediately appealable to the department secretary instead of to the court, are entitled only to Attorney V, SG-25 allocation. Pertinently, the DBM letter reads: Under existing allocation criteria division Chief positions in x x x department level agencies performing quasi-judicial/regulatory functions where decisions are appealable to higher courts shall be allocated to Attorney VI, SG-26. Division chief positions in quasi- judicial/regulatory agencies lower than departments such as the Civil Aeronautics Board (CAB) and the Land Transportation Franchising and Regulatory Board (LTFRB) where decisions are appealable to the Secretary of the DOTC and then the Office of the President shall, however be allocated to Attorney V, SG-25. 11
(Emphasis supplied.) After an exchange of communications between the DBM and the DOTC, the corresponding changes in position classification with all its wage implications were implemented, effective as of April 8, 1991. 12
Unable to accept this new development where his position was allocated the rank of Attorney V, SG-25, Go wrote the DBM to question the "summary demotion or downgrading [of his salary grade]" from SG-26 to SG-25. In his protest-letter, 13 Go excepted from the main reason proferred by the DBM that the decisions or rulings of the LTFRB are only appealable to the DOTC Secretary under Sec. 6 of EO 202 and not to the CA. As Go argued, the aforecited proviso cannot prevail over Sec. 9 (3) of Batas Pambansa Blg. (BP) 129, or the Judiciary Reorganization Act of 1980, under which appeals from decisions of quasi-judicial bodies are to be made to the CA. Ruling of the DBM Secretary & Office of the President On September 14, 1998, the DBM Secretary denied Gos protest, holding that decisions, orders or resolutions of the LTFRB are appealable to the DOTC Secretary. 14 The DBM reminded Go that based on the departments standards and criteria formulated pursuant to Presidential Decree No. (PD) 985 and Republic Act No. (RA) 6758, 15 the division chief of bureau-level agencies, like the LTFRB, is allocable to Attorney V, SG-25. In time, Go sought reconsideration, with the following additional argument: LTFRB is similarly situated as another bureau-level agency under DOTC, the CAB, which is listed under Rule 43 of the Rules of Court as among the quasi-judicial agencies whose decisions or resolutions are directly appealable to the CA. Following the denial of his motion for reconsideration, Go appealed to the Office of the President (OP). On January 7, 2005, in OP Case No. 99-8880, the OP, agreeing with the ruling of the DBM and the premises holding it together, rendered a Decision dismissing Gos appeal. The OP would subsequently deny Gonzalos motion for reconsideration. Undaunted, Go interposed before the CA a petition for review under Rule 43, his recourse docketed as CA-G.R. SP No. 90665. Ruling of the Court of Appeals By Resolution dated August 17, 2005, the appellate court dismissed the petition on the following procedural grounds: (a) Go resorted to the wrong mode of appeal, Rule 43 being available only to assail the decision of a quasi-judicial agency issued in the exercise of its quasi- judicial functions, as DBM is not a quasi-judicial body; (b) his petition violated Sec. 6 (a) of Rule 43; and (c) his counsel violated Bar Matter Nos. 287 and 1132. Through the equally assailed January 31, 2006 Resolution, the CA rejected Gos motion for reconsideration. Hence, the instant petition for certiorari. The Issues I DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED OUTRIGHT THE PETITION ON THE GROUND OF ALLEGED WRONG MODE OF APPEAL THROUGH RULE 43 OF THE RULES OF COURT
2 BY CLAIMING THAT WHEN RESPONDENT OP, WHOSE DECISION IN THE EXERCISE OF ITS QUASI- JUDICIAL POWERS IS APPEALABLE TO THE [CA] UNDER RULE 43, AFFIRMED THE DECISION OF THE DBM, IT WAS NOT IN THE EXERCISE OF ITS QUASI- JUDICIAL POWERS BUT IN THE EXERCISE OF ADMINISTRATIVE SUPERVISION AND CONTROL OVER THE DBM AND THEREFORE APPEAL UNDER RULE 43 CANNOT BE AVAILED OF, FOR UNWARRANTEDLY READING WHAT IS NOT IN THE LAW AND NOT BORNE OUT BY THE FACTS OF THE CASE? II DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED OUTRIGHT THE PETITION ON THE GROUND OF FAILURE TO IMPLEAD A PRIVATE RESPONDENT BY CLAIMING THAT "NO PRIVATE RESPONDENT IS IMPLEADED IN THE PETITION WHILE IMPLEADING THE [DBM] AND THE [OP], IN VIOLATION OF SECTION 6 (A) RULE 43 OF THE RULES OF COURT, WHEN SAID PROVISION COULD NOT BE CONSTRUED AS TO HAVE REQUIRED IMPLEADING A PRIVATE RESPONDENT IN THE PETITION, IF THERE WAS NONE AT ALL? III DID THE [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED OUTRIGHT THE PETITION ON THE GROUND OF FAILURE OF PETITIONERS COUNSEL TO INDICATE CURRENT IBP AND PTR RECEIPT NOS. AND DATES OF ISSUE BY CLAIMING THAT "PETITIONERS COUNSEL HAS NOT INDICATED HIS CURRENT IBP AND PTR RECEIPT NUMBERS AND DATES OF ISSUE" EVEN AS IN THE MOTION FOR RECONSIDERATION, PETITIONER GO EXPLAINED THAT IT WAS AN HONEST INADVERTENCE AND HE EVEN ATTACHED THERETO COPIES OF COPIES THEMSELVES OF THE CURRENT IBP AND PTR RECEIPTS? IV DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED OUTRIGHT THE PETITION ON TECHNICAL AND FLIMSY GROUNDS THUS SHIRKING FROM ITS BOUNDEN TASK TO ADDRESS A VERY PRESSINIG LEGAL ISSUE OF WHETHER EO 202 SEC. 6, A MERE EXECUTIVE ORDER, DIRECTING APPEAL TO THE DOTC SECRETARY SHOULD PREVAIL OVER A LAW, BP BLG. 129, SEC, 9 (C) AND RULE 43, SEC. 1 DIRECTING APPEAL TO THE COURT OF APPEALS? 16
The Courts Ruling There is merit in the petition. The core issues may be reduced into two, to wit: first, the propriety of the dismissal by the CA of Gos Rule 43 petition for review on the stated procedural grounds; and second, the validity of the reallocation of rank resulting in the downgrading of position and diminution of salary. Procedural Issue: Proper Mode of Appeal As the CA held, Rule 43 is unavailing to Go, the remedy therein being proper only to seek a review of decisions of quasi-judicial agencies in the exercise of their quasi-judicial powers. It added that the primarily assailed action is that of the DBM, which is not a quasi-judicial body. In turn, thus, the affirmatory OP decision was made in the exercise of its administrative supervision and control over the DBM, not in the exercise of its quasi-judicial powers. The appellate court is correct in ruling that the remedy availed of by Go is improper but not for the reason it proffered. Both Go and the appellate court overlooked the fact that the instant case involves personnel action in the government, i.e., Go is questioning the reallocation and demotion directed by the DBM which resulted in the diminution of his benefits. Thus, the proper remedy available to Go is to question the DBM denial of his protest before the Civil Service Commission (CSC) which has exclusive jurisdiction over cases involving personnel actions, and not before the OP. This was our ruling involving personnel actions in Mantala v. Salvador, 17 cited in Corsiga v. Defensor 18 and as reiterated in Olanda v. Bugayong. 19 In turn, the resolution of the CSC may be elevated to the CA under Rule 43 and, finally, before this Court. Consequently, Go availed himself of the wrong remedy when he went directly to the CA under Rule 43 without repairing first to the CSC. Ordinarily, a dismissal on the ground that the action taken or petition filed is not the proper remedy under the circumstances dispenses with the need to address the other issues raised in the case. But this is not a hard and fast rule, more so when the dismissal triggered by the pursuit of a wrong course of action does not go into the merits of the case. Where such technical dismissal otherwise leads to inequitable results, the appropriate recourse is to resolve the issue concerned on the merits or resort to the principles of equity. This is as it should be as rules of procedure ought not operate at all times in a strict, technical sense, adopted as they were to help secure, not override substantial justice. 20
In clearly meritorious cases, the higher demands of substantial justice must transcend rigid observance of procedural rules. Overlooking lapses on procedure on the part of litigants in the interest of strict justice or equity and the full adjudication of the merits of his cause or appeal are, in our jurisdiction, matters of judicial policy. And cases materially similar to the one at bench should invite the Courts attention to the merits if only to obviate the resulting inequity arising from the outright denial of the recourse. Here, the dismissal of the instant petition would be a virtual affirmance, on technicalities, of the DBMs assailed action, however iniquitous it may be. Bearing these postulates in mind, the Court, in the greater interest of justice, hereby disregards the procedural lapses obtaining in this case and shall proceed to resolve Gos petition on its substantial merits without further delay. The fact that Gos protest was rejected more than a decade ago, and considering that only legal questions are presented in this petition, warrants the immediate exercise by the Court of its jurisdiction.
3 Core Issue: Summary Reallocation Improper Contrary to the DBMs posture, Go maintains that the LTFRB decisions are appealable to the CA pursuant to Sec. 9 (3) of BP 129 and Rule 43 of the Rules of Court. He argues that the grievance mechanism set forth in Sec. 6 of EO 202 cannot prevail over the appeal provisos of a statute and remedial law. Go thus asserts that the summary reallocation of his position and the corresponding salary grade reassignment, i.e., from Attorney VI, SG-26 to Attorney V, SG- 25, resulting in his demotion and the downgrading of the classification of his position, are without legal basis. EO 202 governs appeals from LTFRB Rulings We understand where Go was coming from since the DBM letter to the DOTC Secretary implementing the summary reallocation of the classification of the position of LTFRB Chief of the Legal Division gave the following to justify the reclassification: the forum, i.e, the department secretary or the CA, where the appeal of a decision of division chief or head of the quasi-judicial agency may be taken. The DBM, joined by the OP, held that LTFRB decisions are appealable to the DOTC Secretary pursuant to Sec. 6 of EO 202. Therefrom, one may go to the OP before appealing to the CA. On this count, we agree with the DBM and the OP. Sec. 6 of EO 202 clearly provides: Sec. 6. Decision of the Board [LTFRB]; Appeals therefrom and/or Review thereof. The Board, in the exercise of its powers and functions, shall sit and render its decisions en banc. x x x The decision, order or resolution of the Board shall be appealable to the [DOTC] Secretary within thirty (30) days from receipt of the decision: Provided, That the Secretary may motu proprio review any decision or action of the Board before the same becomes final. (Emphasis supplied.) As may be deduced from the above provisos, the DOTC, within the period fixed therein, may, on appeal or motu proprio, review the LTFRBs rulings. While not expressly stated in Sec. 6 of EO 202, the DOTC Secretarys decision may, in turn, be further appealed to the OP. The "plain meaning" or verba legis rule dictates that if the statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation. 21 Thus, the LTFRB rulings are not directly appealable to the CA under Rule 43. Go further contends that EO 202, a mere executive issuance, cannot be made to prevail over BP 129, Sec. 9 (3), which provides for the appeal of the decisions and rulings of quasi-judicial agencies to the CA. Moreover, he points to the 1997 revision of the Rules of Civil Procedure which now provides under Rule 43 the appeals before the CA of decisions and rulings of quasi-judicial agencies. Go is mistaken for the ensuing reasons: First, EO 202 was issued on June 19, 1987 by then President Corazon C. Aquino pursuant to her legislative powers under the then revolutionary government. The legislative power of President Aquino ended on July 27, 1987 when the first Congress under the 1987 Constitution convened. 22 For all intents and purposes, therefore, EO 202 has the force and effect of any legislation passed by Congress. Second, EO 202, creating the LTRFB, is a special law, thus enjoying primacy over a conflicting general, anterior law, such as BP 129. In Vinzons-Chato v. Fortune Tobacco Corporation, 23 the Court elucidated on this issue in this wise: A general law and a special law on the same subject are statutes in pari materia and should, accordingly, be read together and harmonized, if possible, with a view to giving effect to both. The rule is that where there are two acts, one of which is special and particular and the other general which, if standing alone, would include the same matter and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a general statute and must not be taken as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all. (Emphasis supplied.) Given the foregoing premises, BP 129 must, on matters of appeals from LTFRB rulings, yield to the provision of EO 202, the subsequent special law being regarded as an exception to, or a qualification of, the prior general act. 24
DBM has authority to allocate classifications of different positions in the Government service There is no dispute that the DBM is vested the authority to enforce and implement PD 985, as amended, which mandates the establishment of a unified compensation and position classification system for the government. Sec. 17 (a) of PD 985, as amended by Sec. 14 (a) of RA 6758, and the original Sec. 17 (b) of PD 985 pertinently provide, thus: Section 17. Powers and Functions. The Budget Commission (now DBM), principally through the OCPC (now CPCB, Compensation and Position Classification Board) shall, in addition to those provided under other Sections of this Decree, have the following powers and functions: a. Administer the compensation and position classification system established herein and revise it as necessary; b. Define each grade in the salary or wage schedule which shall be used as a guide in placing positions to their appropriate classes and grades; Moreover, Secs. 2, 7 and 9 of RA 6758 respectively provide: Sec. 2. Statement of Policy. It is hereby declared the policy of the State to provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. x x x For this purpose, the x x x (DBM) is hereby directed to establish and administer a unified Compensation and Position Classification System, hereinafter referred to as the System, as provided for in [PD] No. 985, as amended, that shall be applied for all government entities, as mandated by the Constitution. x x x x Sec. 7. Salary Schedule. The [DBM] is hereby directed to implement the Salary Schedule prescribed below: x x x x The [DBM] is hereby authorized to determine the officials who are of equivalent rank to the foregoing Officials, where applicable, and
4 may be assigned the same Salary Grades based on the following guidelines: x x x x Sec. 9. Salary Grade Assignments for Other Positions. For positions below the Officials mentioned under Section 8 hereof and their equivalent, whether in the National Government, local government units, government-owned or controlled corporations or financial institutions, the [DBM] is hereby directed to prepare the Index of Occupational Services to be guided by the Benchmark Position Schedule prescribed hereunder and the following factors: (1) the education and experience required x x x; (2) the nature and complexity of the work to be performed; (3) the kind of supervision received; (4) mental and/or physical strain required x x x; (5) nature and extent of internal and external relationships; (6) kind of supervision exercised; (7) decision-making responsibility x x x. (Emphasis supplied.) And while the Office of Compensation and Position Classification, now Compensation and Position Classification Board (CPCB), is vested, under Sec. 8 25 of PD 985, the sole authority to allocate the classification of positions, its determinations relative to the allocations require the approval of the DBM Secretary to be binding. This brings us to the validity of the reallocation. Summary reallocation illegal Go argues that the summary reallocation of the classification of his position as Chief, LTFRB Legal Division to a lower grade substantially reduced his salary and other benefits, veritably depriving him of property, hence, illegal. We agree with Go on this count. The summary reallocation of his position to a lower degree resulting in the corresponding downgrading of his salary infringed the policy of non-diminution of pay which the Court recognized and applied in Philippine Ports Authority v. Commission on Audit, 26 as well as in the subsequent sister cases 27
involving benefits of government employees. Running through the gamut of these cases is the holding that the affected government employees shall continue to receive benefits they were enjoying as incumbents upon the effectivity of RA 6758. Relevant to the critical issue at hand is Sec. 15 (b) of PD 985 which, as amended by Sec. 13 (a) of RA 6758, pertinently reads: SEC. 13. Pay Adjustments.- x x x (b) Pay Reduction If an employee is moved from a higher to a lower class, he shall not suffer a reduction in salary: Provided, That such movement is not the result of a disciplinary action or voluntary demotion. (Emphasis supplied.) Prior to its amendment, Sec. 15 (b) of PD 985 reads: (b) Pay Reduction If an employee is moved from a higher to a lower class, he shall not suffer a reduction in salary except where his current salary is higher than the maximum step of the new class in which case he shall be paid the maximum: Provided, That such movement is not the result of a disciplinary action. (Emphasis supplied.) As may be noted, the legislature dropped from the original proviso on pay reduction the clause: "except where his current salary is higher than the maximum step of the new class in which case he shall be paid the maximum." The deletion doubtless indicates the legislative intent of maintaining, in line with the non-diminution principle, the level or grade of salary enjoyed by an incumbent before the reallocation to a lower grade or classification is effected. It must be made absolutely clear at this juncture that Go received his position classification of Attorney VI and assigned SG-26 upon his promotional appointment as Chief, LTFRB Legal Division on February 1, 1990, or after the effectivity of RA 6758. Following the clear mandate of the aforequoted Sec. 15(b) of PD 985, as amended, Go must not suffer a reduction in his salary even if there was a reallocation of his position to a lower grade. Lest it be overlooked, the transition provisos of RA 6758 provide additional justification for Gos entitlement to continue receiving the compensation and emoluments previously granted him upon his promotion as Chief, LTFRB Legal Division. Go, as an incumbent of said position before the assailed reallocation was effected ostensibly through the implementation of RA 6758, the statutes transition provisions should apply mutatis mutandis to him. The pertinent provisions are Secs. 12 and 17 of RA 6758, to wit: Section 12. Consolidation of Allowances and Compensation.All allowances, except for representation and transportation allowances, clothing and laundry allowances; x x x and such other additional compensation not otherwise specified herein as may determined by the [DBM], shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized. x x x x Section 17. Salaries of Incumbents.Incumbents of positions presently receiving salaries and additional compensation/fringe benefits including those absorbed from local government units and other emoluments, the aggregate of which exceeds the standardized salary rate as herein prescribed, shall continue to receive such excess compensation, which shall be referred to as transition allowance. The transition allowance shall be reduced by the amount of salary adjustment that the incumbent shall receive in the future. Pursuant to the principle of non-diminution and consistent with the rule on the prospective application of laws in the spirit of justice and fair play, 28 the above provisions are, indeed, meant to protect incumbents who are receiving salaries and allowances beyond what may be allowable under RA 6758. It may be that Go was not the occupant of his present position as of July 1, 1989. Still the positions in the plantilla of the LTFRB were properly subjected to the standardization under RA 6758. In fact, the matter of excess of salary and benefits in the application of RA 6758 and PD 985 is a non-issue. What is at issue is the reallocation of the position from Attorney VI, SG-26 to Attorney V, SG-25. Obviously, the question of who was sitting as Chief of the Legal Division as of July 1, 1989 is of no moment. Of particular significance is the issue of whether the reallocation to a lower degree is proper given that Go was already enjoying the salary and emoluments as Attorney VI, SG-26 upon his appointment on February 1, 1990 as Chief, LTFRB Legal Division. While the DBM is statutorily vested with the authority to reclassify or allocate positions to their appropriate classes, with the concomitant authority to formulate allocating policies and criteria for bureau-level agencies, like the LTFRB, the investiture could not have plausibly
5 included unchecked discretion to implement a reallocation system offensive to the due process guarantee. It is recognized that ones employment is a property right within the purview of the due process clause.1avvphi1 So it was that in Crespo v. Provincial Board of Nueva Ecija 29 the Court categorically held that "ones employment, profession, trade or calling is a property right, and the wrongful interference therewith is an actionable wrong. The right is considered to be property within the protection of a constitutional guaranty of due process of law." 30
Per our count, from his promotional appointment as Chief, LTFRB Legal Division to the time (April 8, 1991) the summary reallocation was implemented, Go had occupied the position and enjoyed the corresponding salary and emoluments therefor for one year, two months and eight days. In this length of time, Gos entitlement to the benefits appurtenant to the position has well nigh ripened into a vested right. As the records show, Go, as Attorney VI, SG-26, was receiving an annual salary of PhP 151,800. Consequent to the enforcement of the summary reallocation of his position to Attorney V, SG-25, this was effectively reduced, reckoned from April 8, 1991, to PhP 136,620, 31 or a salary reduction of PhP 15,180 a year. These figures of course have yet to factor in supervening pay adjustments occurring through the years. A vested right is one whose existence, effectivity and extent do not depend upon events foreign to the will of the holder, or to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency. 32 The term "vested right" expresses the concept of present fixed interest which, in right reason and natural justice, should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny. 33
To be vested, a right must have become a titlelegal or equitableto the present or future enjoyment of property. 34
To us, Go has established a clear, equitable vested right to the emoluments of his position as Attorney VI, SG-26. He continues to occupyat least up to April 11, 2006 when he filed this petitionthe position of Chief, LTFRB Legal Division. His title to Attorney VI, SG- 26 is without question, having been legally appointed to the position on February 1, 1990. And being an incumbent to that position, he has, at the very least, an equitable right to receive the corresponding salary and emoluments attached thereto. The summary demotion to a lower salary grade, with the corresponding decrease in salary and emoluments after he has occupied his current rank and position, goes against his right to continue enjoying the benefits accorded the position and which his predecessors must have been receiving. His right thereto has ripened into a vested right, of which he could be deprived only by due process of law, but which we believe he was denied through the summary reallocation. With the view we take of this case, Go was neither apprised nor given the opportunity to contest the reallocation before its summary implementation. Lest this Decision is taken out of context, the Court wishes to emphasize that it is not its intention to disturb the reallocation of the position Chief, LTFRB Legal Division to Attorney V, SG-25. Accordingly, it behooves the DBM and the LTFRB to enforce the classification of position of Attorney V, SG-25 to those who will succeed Go in the said position. It bears to stress nonetheless that this pro hac vice case disposition is predicated on the following key considerations: (1) Go was duly appointed to an office previously classified as a division chief position with an Attorney VI, SG 26 assignment; (2) under DBM circulars then obtaining, it would appear that division chief positions carried a SG- 26 classification without the qualification set forth in the DBMs letter of March 31, 1991. In a real sense, therefore, the present controversy is attributable to the DBMs failure to incorporate, at the outset, the necessary clarificatory qualifications/ distinctions in its position and salary allocation rules/circulars; (3) Gos receipt for some time of the salary and other emoluments attached to the position was cut short by the reallocation of the position, resulting in his demotion and downgrading of salary; and (4) the reallocation was effected by the DBM in a summary manner. WHEREFORE, the instant petition is GRANTED. The Resolutions dated August 17, 2005 and January 31, 2006 of the Court of Appeals in CA-G.R. SP No. 90665 are hereby REVERSED and SET ASIDE. The January 7, 2005 Decision and June 28, 2005 Order of the Office of the President in OP Case No. 99-8880 are likewise REVERSED and SET ASIDE. Accordingly, the summary reallocation enforced and implemented on April 8, 1991 is declared NULL and VOID. The Department of Transportation and Communications is hereby ORDERED to reinstate Gonzalo S. Go, Jr. to the position of Attorney VI, SG-26 as the Chief of the Legal Division of the Land Transportation Franchising and Regulatory Board, with the corresponding release to him of the differential of all emoluments reckoned from April 8, 1991. No pronouncement as to costs. SO ORDERED.
6
7 G.R. No. 139794 February 27, 2002 MARTIN S. EMIN, petitioner, vs. CHAIRMAN CORAZON ALMA G. DE LEON, COMMISSIONERS THELMA P. GAMINDE and RAMON P. ERENETA, JR., of the CIVIL SERVICE COMMISSION, respondents. D E C I S I O N QUISUMBING, J .: This is a petition to review the decision dated October 30, 1998 of the Court of Appeals in CA-G.R. S.P. No. 46549, affirming Civil Service Commission Resolution Nos. 96-3342 and 97-4049 finding petitioner Martin Emin, guilty of dishonesty, grave misconduct and conduct prejudicial to the best interest of the service, and dismissing him from the service as Non-Formal Education (NFE) Supervisor of the Department of Education, Culture and Sports (DECS), Kidapawan, Cotabato. The facts are as follows: Sometime in the year 1991, appointment papers for a change of status from provisional to permanent under Republic Act No. 6850 of teachers were submitted to the Civil Service Field Office-Cotabato at Amas, Kidapawan, Cotabato. Attached to these appointment papers were photocopies of certificates of eligibility of the teachers. Director Gantungan U. Kamed noticed that the certificates of eligibility were of doubtful authenticity. He called the Head Civil Service Field Officer. While the certificates seemed to be authentic, the signature of Civil Service Commission Director Elmer R. Bartolata and the initials of the processors of said certificates were clearly forgeries. Director Kamed initially forwarded five (5) appointments to Civil Service Regional Office No. XII for verification of their R.A. 6850 eligibilities and for appropriate action through an indorsement letter dated September 26, 1991. The appointment papers of the same nature subsequently submitted to the Field Office were likewise forwarded to the CSRO No. XII. Upon verification of the records of CSRO No. XII, it was found that said applications for civil service eligibility under R.A. 6850 were disapproved. However, the certificates of eligibility they submitted were genuine as their control number belonged to the batch issued to CSRO No. XII by the CSC Central Office. But the records showed that these certificates were never issued to any one. Two separate investigations 1 were conducted by Director Cesar P. Buenaflor of Regional Office No. 12 of the Civil Service Commission in Cotabato City: (1) on how the R.A. 6850 certificates were issued/released from the Office, and (2) on how the teachers got said certificates. The teachers concerned were asked to report to the Office and bring the original copies of their certificates of eligibility. On several dates, the teachers appeared and gave their sworn statements pointing to petitioner as the person who gave them the R.A. 6850 certificates of eligibility they had attached to their appointments for a fee. Upon finding a prima facie case, petitioner was formally charged with dishonesty, grave misconduct and conduct prejudicial to the best interest of the service. 2
In his sworn letter dated April 8, 1992 to the CSC Regional Director, petitioner denied the accusation. 3 He filed a motion to dismiss, dated June 5, 1992, 4 but the motion was denied on July 8, 1992. During the hearing, the six teachers cited in the charge sheet, namely: Eufrocina Sicam, Ma. Elisa Sarce, Lilia Millondaga, Merla Entiero, Lourdes Limbaga and Florida P. Alforjas were presented as witnesses for the prosecution. Felixberta Ocho and Araceli G. Delgado who were also holders of fake certificates of eligibility were likewise presented as witnesses. Alforjas and Delgado identified petitioner and a certain Teddy Cruz as the persons who facilitated their applications for R.A. 6850 eligibility. The other witnesses corroborated Alforjas and Delgados testimonies. They all identified petitioner as the person who helped them obtain the fake certificates of eligibility. On June 29, 1994, Director Buenaflor submitted a report 5 to the Chairman of the Civil Service Commission. The CSC found that there was sufficient evidence to warrant the conviction of petitioner. On May 14, 1996, the Civil Service Commission in its resolution decreed: WHEREFORE, Martin S. Emin is hereby found guilty of Grave Misconduct. Accordingly, the penalty of dismissal from the service including all its accessory penalties is imposed upon him. 6
Not satisfied with the abovecited resolution, the petitioner filed a motion for reconsideration, 7 but it was denied. On January 16, 1998, petitioner elevated the case to the Court of Appeals, but it was dismissed for failure to comply with Section 5, Rule 43 of the 1997 Rules of Civil Procedure. 8
However, the CA granted petitioners motion for reconsideration 9 and time to amend his petition. 10 In his amended petition, he raised before the CA the twin issues of (1) whether the CSC had original jurisdiction over the administrative cases against the public school teachers; and (2) whether petitioner was accorded due process. 11
Finding the petition unmeritorious, the appellate court ruled on the appeal, thus: WHEREFORE, premises considered, the petition (appeal) is DISMISSED, hereby affirming public respondents assailed appealed resolutions (Resolution No. 963342, dated May 14,1996; and Resolution No. 974049, dated October 14, 1997). SO ORDERED. 12
Petitioner is now before us raising the following issues: I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION HAS ORIGINAL JURISDICTION OVER ADMINISTRATIVE CASES AGAINST PUBLIC SCHOOL TEACHERS. II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PETITIONER WAS NOT ACCORDED HIS RIGHT TO DUE PROCESS. III. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THERE WAS SUFFICIENT
8 GROUND TO DISMISS THE PETITIONER FROM SERVICE. IV. WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT ADMITTING THE NEWLY DISCOVERED EVIDENCE. 13
Notwithstanding petitioners formulation, we find that the issues to be resolved are: (1) whether or not the CSC has original jurisdiction over the present case; and (2) whether or not petitioner was accorded due process. Petitioner avers that as a teacher, original jurisdiction over the administrative case against him is lodged with a committee and not with the CSC, as provided for by Republic Act 4670 otherwise known as the "Magna Carta for Public School Teacher," specifically, Section 9 thereof, which provides: Sec. 9. Administrative Charges.- Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local, or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. For public respondent CSC, the Office of the Solicitor General maintains that original jurisdiction over the present case is with the CSC pursuant to the Constitution and P.D. 807 (Civil Service Law) which provide that the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including government-owned or controlled corporations whether performing governmental or proprietary function. We find merit in petitioners contention that R.A. 4670 is good law and is applicable to this case. R.A. 4670 has not been expressly repealed by the general law P.D. 807, nor has R.A. 4670 been shown to be inconsistent with the presidential decree. 14 Section 2 thereof specified those who are covered by the term "teacher" as follows: SEC. 2. Title Definition. - This Act shall be known as the "Magna Carta for Public School Teachers" and shall apply to all public school teachers except those in the professorial staff of state colleges and universities. As used in this Act, the term "teacher" shall mean all persons engaged in classroom teaching, in any level of instruction, on full-time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees. Petitioner is the Non-Formal Education Supervisor of the DECS, in Kidapawan, Cotabato, in-charge of the out-of-school programs. 15 The 1993 Bureau of Non-formal Education Manual 16 outlines the functions of a NFE Division Supervisor which include, "(5) implementation of externally assisted NFE programs and projects; (6) monitoring and evaluation of NFE programs and projects (8) supervision of the implementation of NFE programs/projects at the grassroots level." 17
Clearly, petitioner falls under the category of "all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the government or its political subdivisions." Under Section 2 of R.A. 4670, the exclusions in the coverage of the term "teachers" are limited to: (1) public school teachers in the professorial staff of state colleges and universities; and (2) school nurses, school physicians, school dentists, and other school employees under the category of "medical and dental personnel". Under the principle of ejusdem generis, general words following an enumeration of persons or things, by words of a particular and specific meaning, are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned. 18 Too, the enumeration of persons excluded from the coverage of the term "teachers" is restricted, limited and exclusive to the two groups as abovementioned. Where the terms are expressly limited to certain matters, it may not by interpretation or construction be extended to other matters. 19 Exclusio unios est inclusio alterius. Had Congress intended to exclude an NFE Division Supervisor from the coverage of R.A. 4670, it could have easily done so by clear and concise language. As petitioner is covered by R.A. 4670, it is the Investigating Committee that should have investigated his case conformably with Section 9 of R.A. 4670, now being implemented by Section 2, Chapter VII of DECS Order No. 33, S. 1999, otherwise known as the DECS Rules of Procedure. 20
However, at this late hour, the proceedings conducted by the public respondent CSC can no longer be nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is now barred from impugning the CSCs jurisdiction over his case. But we must stress that nothing herein should be deemed as overriding the provision in the Magna Carta for Teachers on the jurisdiction of the Committee to investigate public school teachers as such, and the observance of due process in administrative proceedings involving them, nor modifying prior decided cases of teachers on the observance of the said Magna Carta such as Fabella vs. Court of Appeals. 21
Here what is crucial, in our view, is that the Civil Service Commission had afforded petitioner sufficient opportunity to be heard and defend himself against charges of participation in faking civil service eligibilities of certain teachers for a fee. Not only did he answer the charges before the CSC Regional Office but he participated in the hearings of the charges against him to the extent that we are left with no doubt that his participation in its proceedings was willful and voluntary. As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them. 22 In the case at bar, petitioner raised the issue of lack of jurisdiction for the first time in his amended petition for review 23 before the CA. He did not raise this matter in his Motion to Dismiss 24 filed before the CSC Regional Office. Notably, in his Counter-Affidavit, he himself invoked the jurisdiction of the Commission by stating that he was "open to further investigation by the CSC to bring light to the matter" 25 and by further praying for "any remedy or judgment which under the premises are just and equitable." 26 It is an undesirable practice of a party participating in the proceedings, submitting his case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction, when adverse. 27
9 Equally unmeritorious is petitioners contention that he was denied due process. He avers that he was not allowed cross-examination. It is well to remember that in administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense. 28
Nothing on record shows he asked for cross-examination as most of the submissions were written. In our view, petitioner cannot argue that he has been deprived of due process merely because no cross- examination took place. The rule is well established that due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or given opportunity to move for a reconsideration of the action or ruling complained of. 29 In the present case, the record clearly shows that petitioner not only filed his Counter-Affidavit 30 during the preliminary investigation, and later his Motion to Dismiss. 31 He also filed a Motion for Reconsideration 32 of the October 19, 1993 Order of the Commission. The essence of due process in administrative proceedings is an opportunity to explain ones side or an opportunity to seek reconsideration of the action or ruling complained of. 33
Neither is there merit in petitioners assertion that he was denied the right to due process when the CSC Regional Office, according to him, acted as investigator, prosecutor, judge and executioner. He laments that Director Buenaflor who formally filed the charge nominally was also the hearing officer, and that prosecutor Atty. Anabelle Rosell was also the one who submitted the recommendation to the CSC for the dismissal of petitioner. Recall, however, that it was ultimately the Civil Service Chairman who promulgated the decision. The report submitted by Atty. Rosell based on the hearing where Director Buenaflor sat as hearing officer, was merely recommendatory in character to the Civil Service Commission itself. Such procedure is not unusual in an administrative proceeding.1wphi1 Petitioner claims that there was no valid case to dismiss him as Director Elmer Bartolata was not presented to ascertain the alleged forged signature contained in the questioned certificates of eligibility. The Court of Appeals and the Civil Service Commission made a finding on this fact of forgery. It is not this Courts function now to evaluate factual questions all over again. This is particularly true in this case, where the Commission and the appellate court agree on the facts. 34
Lastly, petitioner contends that the affidavit of Teodorico Cruz 35
should have been admitted as newly discovered evidence. Petitioner raised this issue for the first time on appeal, when he filed his Motion for New Trial and to Admit Newly Discovered Evidence before the CA. For a particular piece of evidence to be regarded as "newly discovered" for purposes of a new trial, it is essential that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed to secure it. The OSG 36 observed that despite the knowledge of the importance of Mr. Cruzs testimony on the matter, petitioner did not ask for a subpoena duces tecum to obtain said "newly discovered evidence." Neither did petitioner, on his own, secure said affidavit or testimony during the proceedings to support his cause. We note too, that the said affidavit attempts to exonerate the petitioner and Cruz and points to someone else ("Jing") as the culprit, leaving the impression that the idea of the affidavit was a mere afterthought, a last ditch effort to clear petitioners name. Thus, we are not persuaded by petitioners claim of newly discovered evidence, for it appears to us as a dilatory contrivance for petitioners benefit. WHEREFORE, there being no reversible error committed by the Court of Appeals and the respondent officials of the CSC, the instant petition is hereby DENIED. The Decision dated October 30, 1998 of the Court of Appeals in CA-G.R. S.P. No. 46549 is AFFIRMED. Costs against petitioner. SO ORDERED.
10
11 G.R. No. 167916 August 26, 2008 SARAH P. AMPONG, petitioner, vs. CIVIL SERVICE COMMISSION, CSC-Regional Office No. 11, respondents. D E C I S I O N REYES R.T., J .: CAN the Civil Service Commission (CSC) properly assume jurisdiction over administrative proceedings against a judicial employee involving acts of dishonesty as a teacher, committed prior to her appointment to the judiciary? Before Us is a petition for review on certiorari assailing the Decision 1
of the Court of Appeals (CA) affirming the CSCs exercise of administrative jurisdiction over petitioner. The Facts The following facts are uncontroverted: On November 10, 1991, a Professional Board Examination for Teachers (PBET) 2 was held in Davao City. A certain Evelyn Junio- Decir 3 applied for and took the examination at Room 16, Kapitan Tomas Monteverde Elementary School. She passed with a rating of 74.27%. 4
At the time of the PBET examinations, petitioner Sarah P. Ampong (nee Navarra) and Decir were public school teachers under the supervision of the Department of Education, Culture and Sports (DECS). 5 Later, on August 3, 1993, Ampong transferred to the Regional Trial Court (RTC) in Alabel, Sarangani Province, where she was appointed as Court Interpreter III. On July 5, 1994, a woman representing herself as Evelyn Decir went to the Civil Service Regional Office (CSRO) No. XI, Davao City, to claim a copy of her PBET Certificate of Eligibility. During the course of the transaction, the CSRO personnel noticed that the woman did not resemble the picture of the examinee in the Picture Seat Plan (PSP). Upon further probing, it was confirmed that the person claiming the eligibility was different from the one who took the examinations. It was petitioner Ampong who took and passed the examinations under the name Evelyn Decir. The CSRO conducted a preliminary investigation and determined the existence of a prima facie case against Decir and Ampong for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. On August 23, 1994, they were formally charged and required to file answers under oath. The formal charge reads: That sometime before the conduct of the November 10, 1991 Professional Board Examination for Teachers (PBET), a certain Ms. Evelyn B. Junio (now Decir) took the said examination at Rm. 16 Kapitan Tomas Monteverde Elementary School, Davao City, with a passing rate of 74.27%; That on July 5, 1994 she appeared before the CSC Region XI Office to get her Guro Certificate; That upon verification, it was found out that the picture attached in the Picture Seat Plan, marked as Annex "A" and "A-1," respectively, were not the same compared to the picture attached in the CSC Form 212 of Evelyn Junio-Decir marked herein as annex "B," "B-1," respectively. There was also a marked difference in the signatures affixed in the said annexes; That further investigations revealed that it was the pictures of Ms. Sarah Navarra, wife of her husbands first cousin, who took the said examination in behalf of Ms. Evelyn Junio-Decir, a provisional teacher; That the said act of Mesdames Decir and Navarra are acts of dishonesty and conduct prejudicial to the best interest of the service; that in (sic) taking the CS examination for and in behalf of another undermines the sanctity of the CS examinations; All these contrary to existing civil service laws and regulations. (Emphasis supplied) In her sworn statement dated November 3, 1994, Decir denied the charges against her. She reasoned out that it must have been the examination proctor who pasted the wrong picture on the PSP and that her signatures were different because she was still signing her maiden name at the time of the examination. In her Answer, Decir contended that: 2. The same accusation is denied, the truth being: a. When I took the Professional Board Examination for Teachers (PBET) in the year 1991, I handed my 1x1 I.D. picture to the proctor assigned in the examination room who might have inadvertently pasted in the Seat Plan [the] wrong picture instead [of] my own picture; b. With respect to the marked difference in my signature both appearing in the aforesaid Seat Plan and also with the Form 212, the disparity lies in that in the year 1991, when I took the afroresaid examination, I was still sporting my maiden name Evelyn B. Junio in order to coincide with all my pertinent supporting papers, like the special order (s.o.), appointment and among others, purposely to take said communications. However, immediately after taking the PBET Examination in 1991, I started using the full name of Evelyn Junio-Decir. 6
Even before filing an Answer, petitioner Ampong voluntarily appeared at the CSRO on February 2, 1995 and admitted to the wrongdoing. When reminded that she may avail herself of the services of counsel, petitioner voluntarily waived said right. On March 13, 1995, petitioner gave another admission in the following tenor: Q: Now, what is then your intention in coming to this Region inasmuch as you are still intending to file an answer to the formal charge? A: I came here because I want to admit personally. So that I will not be coming here anymore. I will submit my case for Resolution. Q: So, you intend to waive your right for the formal hearing and you also admit orally on the guilt of the charge on the Formal Charge dated August 24, 1994? A: Yes, Maam.
12 Q: What else do you want to tell the Commission? A: x x x Inasmuch as I am already remorseful, I am repenting of the wrong that I have done. I am hoping that the Commission can help x x x so that I will be given or granted another chance to serve the government. x x x x Q: Now inasmuch as you have declared that you have admitted the guilt that you took the examination for and in behalf of Evelyn Junio Decir, are you telling this to the Commission without the assistance of the counsel or waiver of your right to be assisted by counsel. A: Yes, Maam. I am waiving my right. 7 (Emphasis supplied) Petitioner reiterated her admission in her sworn Answer dated March 16, 1995: 3. That, during the commission of the act, I was still under the Department of Education, Culture and Sports, as Teacher in-charge of San Miguel Primary School, Malungon North District, way back in 1991, when the husband of Evelyn Junio-Decir, my husbands cousin came to me and persuaded me to take the examination in behalf of his wife to which I disagreed but he earnestly begged so that I was convinced to agree because I pity his wife considering that she is an immediate relative, and there was no monetary consideration involved in this neither a compensatory reward for me, as I was overcome by their persuasion; 4. That, despite the fact that I was a teacher, I was not aware that the acts I was charged, is a ground for disciplinary action and punishable by dismissal; 5. That I should not have conformed to this anomalous transaction considering that I was born in a Christian family, and was brought up in the fear of Lord, and had been a consistent officer of the Church Board, had been a religious leader for so many years, and had been the organizer of the Music Festival of the Association of Evangelical Churches of Malungon, Sarangani Province, thus I was devoted to church work and was known to be of good conduct; and that my friends and acquaintances can vouch to that, but I was just forced by circumstances to agree to the spouses Godfre and Evelyn Decir. 8 (Emphasis added) CSC Finding and Penalty On March 21, 1996, the CSC found petitioner Ampong and Decir guilty of dishonesty, dismissing them from the service. The dispositive part of the CSC resolution states: WHEREFORE, the Commission hereby finds Evelyn J. Decir and Sarah P. Navarra guilty of Dishonesty. Accordingly, they are meted the penalty of dismissal with all its accessory penalties. The PBET rating of Decir is revoked. 9
Petitioner moved for reconsideration, raising for the first time the issue of jurisdiction. 10 She argued that the exclusive authority to discipline employees of the judiciary lies with the Supreme Court; that the CSC acted with abuse of discretion when it continued to exercise jurisdiction despite her assumption of duty as a judicial employee. She contended that at the time the case was instituted on August 23, 1994, the CSC already lost jurisdiction over her. She was appointed as Interpreter III of the RTC, Branch 38, Alabel, Sarangani Province on August 3, 1993. The CSC denied the motion for reconsideration. 11 According to the Commission, to allow petitioner to evade administrative liability would be a mockery of the countrys administrative disciplinary system. It will open the floodgates for others to escape prosecution by the mere expedient of joining another branch of government. In upholding its jurisdiction over petitioner, the CSC differentiated between administrative supervision exercised by the Supreme Court and administrative jurisdiction granted to the Commission over all civil service employees: Moreover, it must be pointed out that administrative supervision is distinct from administrative jurisdiction. While it is true that this Commission does not have administrative supervision over employees in the judiciary, it definitely has concurrent jurisdiction over them. Such jurisdiction was conferred upon the Civil Service Commission pursuant to existing law specifically Section 12(11), Chapter 3, Book V of the Administrative Code of 1987 (Executive Order No. 292) which provides as follows: "(11) Hear and decide administrative cases instituted by or through it directly or on appeal, including contested appointment, and review decisions and actions of its offices and of the agencies attached to it x x x." The fact that court personnel are under the administrative supervision of the Supreme Court does not totally isolate them from the operations of the Civil Service Law. Appointments of all officials and employees in the judiciary is governed by the Civil Service Law (Section 5(6), Article VIII, 1987 Constitution). (Emphasis supplied) CA Disposition Via petition for review under Rule 43, petitioner elevated the matter to the CA. 12 She insisted that as a judicial employee, it is the Supreme Court and not the CSC that has disciplinary jurisdiction over her. In a Decision dated November 30, 2004, 13 the CA denied the petition for lack of merit. The CA noted that petitioner never raised the issue of jurisdiction until after the CSC ruled against her. Rather, she willingly appeared before the commission, freely admitted her wrongdoing, and even requested for clemency. Thus, she was estopped from questioning the Commissions jurisdiction. The appellate court opined that while lack of jurisdiction may be assailed at any stage, a partys active participation in the proceedings before a court, tribunal or body will estop such party from assailing its jurisdiction. The CA further ruled that a member of the judiciary may be under the jurisdiction of two different bodies. As a public school teacher or a court interpreter, petitioner was part of the civil service, subject to its rules and regulations. When she committed acts in violation of the Civil Service Law, the CSC was clothed with administrative jurisdiction over her.
13 Issue Petitioner, through this petition, assigns the lone error that: The Honorable Court of Appeals-First Division decided a question of substance in a way not in accord with law and jurisprudence, gravely erred in facts and in law, and has sanctioned such departure and grave error because it ignored or was not aware of Garcia v. De la Pea, 229 SCRA 766 (1994) and Adm. Matter No. OCA I.P.I. 97-329- P (CSC v. Ampong) dated January 31, 2001, which reiterate the rule that exclusive authority to discipline employees of the judiciary lies with the Supreme Court, in issuing the questioned decision and resolution; which grave error warrant reversal of the questioned decision and resolution. 14
Put simply, the issue boils down to whether the CSC has administrative jurisdiction over an employee of the Judiciary for acts committed while said employee was still with the Executive or Education Department. Our Ruling The answer to the question at the outset is in the negative but We rule against the petition on the ground of estoppel. It is true that the CSC has administrative jurisdiction over the civil service. As defined under the Constitution and the Administrative Code, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, and government-owned or controlled corporations. 15 Pursuant to its administrative authority, the CSC is granted the power to "control, supervise, and coordinate the Civil Service examinations." 16 This authority grants to the CSC the right to take cognizance of any irregularity or anomaly connected with the examinations. 17
However, the Constitution provides that the Supreme Court is given exclusive administrative supervision over all courts and judicial personnel. 18 By virtue of this power, it is only the Supreme Court that can oversee the judges and court personnels compliance with all laws, rules and regulations. It may take the proper administrative action against them if they commit any violation. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. 19 Thus, this Court ruled that the Ombudsman cannot justify its investigation of a judge on the powers granted to it by the Constitution. It violates the specific mandate of the Constitution granting to the Supreme Court supervisory powers over all courts and their personnel; it undermines the independence of the judiciary. 20
In Civil Service Commission v. Sta. Ana, 21 this Court held that impersonating an examinee of a civil service examination is an act of dishonesty. But because the offender involved a judicial employee under the administrative supervision of the Supreme Court, the CSC filed the necessary charges before the Office of the Court Administrator (OCA), a procedure which this Court validated. A similar fate befell judicial personnel in Bartolata v. Julaton, 22
involving judicial employees who also impersonated civil service examinees. As in Sta. Ana, the CSC likewise filed the necessary charges before the OCA because respondents were judicial employees. Finding respondents guilty of dishonesty and meting the penalty of dismissal, this Court held that "respondents machinations reflect their dishonesty and lack of integrity, rendering them unfit to maintain their positions as public servants and employees of the judiciary." 23
Compared to Sta. Ana and Bartolata, the present case involves a similar violation of the Civil Service Law by a judicial employee. But this case is slightly different in that petitioner committed the offense before her appointment to the judicial branch. At the time of commission, petitioner was a public school teacher under the administrative supervision of the DECS and, in taking the civil service examinations, under the CSC. Petitioner surreptitiously took the CSC- supervised PBET exam in place of another person. When she did that, she became a party to cheating or dishonesty in a civil service- supervised examination. That she committed the dishonest act before she joined the RTC does not take her case out of the administrative reach of the Supreme Court. The bottom line is administrative jurisdiction over a court employee belongs to the Supreme Court, regardless of whether the offense was committed before or after employment in the judiciary. Indeed, the standard procedure is for the CSC to bring its complaint against a judicial employee before the OCA. Records show that the CSC did not adhere to this procedure in the present case. However, We are constrained to uphold the ruling of the CSC based on the principle of estoppel. The previous actions of petitioner have estopped her from attacking the jurisdiction of the CSC. A party who has affirmed and invoked the jurisdiction of a court or tribunal exercising quasi-judicial functions to secure an affirmative relief may not afterwards deny that same jurisdiction to escape a penalty. 24 As this Court declared in Aquino v. Court of Appeals: 25
In the interest of sound administration of justice, such practice cannot be tolerated. If we are to sanction this argument, then all the proceedings had before the lower court and the Court of Appeals while valid in all other respects would simply become useless. 26
Under the principle of estoppel, a party may not be permitted to adopt a different theory on appeal to impugn the courts jurisdiction. 27 In Emin v. De Leon, 28 this Court sustained the exercise of jurisdiction by the CSC, while recognizing at the same time that original disciplinary jurisdiction over public school teachers belongs to the appropriate committee created for the purpose as provided for under the Magna Carta for Public School Teachers. 29 It was there held that a party who fully participated in the proceedings before the CSC and was accorded due process is estopped from subsequently attacking its jurisdiction. Petitioner was given ample opportunity to present her side and adduce evidence in her defense before the CSC. She filed with it her answer to the charges leveled against her. When the CSC found her guilty, she moved for a reconsideration of the ruling. These circumstances all too clearly show that due process was accorded to petitioner. Petitioners admission of guilt stands. Apart from her full participation in the proceedings before the CSC, petitioner admitted to the offense charged that she impersonated Decir and took the PBET exam in the latters place. We note that even before petitioner filed a written answer, she voluntarily went to the CSC Regional Office and admitted to the charges against her. In the same breath, she waived her right to the assistance of counsel. Her admission, among others, led the CSC to find her guilty of dishonesty, meting out to her the penalty of dismissal. Now, she assails said confession, arguing that it was given without aid of counsel. In police custodial investigations, the assistance of counsel
14 is necessary in order for an extra-judicial confession to be made admissible in evidence against the accused in a criminal complaint. If assistance was waived, the waiver should have been made with the assistance of counsel. 30
But while a partys right to the assistance of counsel is sacred in proceedings criminal in nature, there is no such requirement in administrative proceedings. In Lumiqued v. Exevea, 31 this Court ruled that a party in an administrative inquiry may or may not be assisted by counsel. Moreover, the administrative body is under no duty to provide the person with counsel because assistance of counsel is not an absolute requirement. 32
Petitioners admission was given freely. There was no compulsion, threat or intimidation. As found by the CSC, petitioners admission was substantial enough to support a finding of guilt. The CSC found petitioner guilty of dishonesty. It is categorized as "an act which includes the procurement and/or use of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or procurement of the same, cheating, collusion, impersonation, or any other anomalous act which amounts to any violation of the Civil Service examination." 33 Petitioner impersonated Decir in the PBET exam, to ensure that the latter would obtain a passing mark. By intentionally practicing a deception to secure a passing mark, their acts undeniably involve dishonesty. 34
This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray." 35
Petitioners dishonest act as a civil servant renders her unfit to be a judicial employee. Indeed, We take note that petitioner should not have been appointed as a judicial employee had this Court been made aware of the cheating that she committed in the civil service examinations. Be that as it may, petitioners present status as a judicial employee is not a hindrance to her getting the penalty she deserves. The conduct and behavior of everyone connected with an office charged with the dispensation of justice is circumscribed with a heavy burden or responsibility. The image of a court, as a true temple of justice, is mirrored in the conduct, official or otherwise, of the men and women who work thereat, from the judge to the least and lowest of its personnel. 36 As the Court held in another administrative case for dishonesty: x x x Any act which diminishes or tends to diminish the faith of the people in the judiciary shall not be countenanced. We have not hesitated to impose the utmost penalty of dismissal for even the slightest breach of duty by, and the slightest irregularity in the conduct of, said officers and employees, if so warranted. Such breach and irregularity detract from the dignity of the highest court of the land and erode the faith of the people in the judiciary. x x x x As a final point, we take this opportunity to emphasize that no quibbling, much less hesitation or circumvention, on the part of any employee to follow and conform to the rules and regulations enunciated by this Court and the Commission on Civil Service, should be tolerated. The Court, therefore, will not hesitate to rid its ranks of undesirables who undermine its efforts toward an effective and efficient system of justice. 37 (Emphasis added) We will not tolerate dishonesty for the Judiciary expects the best from all its employees. 38 Hindi namin papayagan ang pandaraya sapagkat inaasahan ng Hudikatura ang pinakamabuti sa lahat nitong kawani. WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED.
15 G.R. No. 168670 April 13, 2007 OFFICE OF THE OMBUDSMAN, Petitioner, vs. HEIDI M. ESTANDARTE andTHE COURT OF APPEALS, TWENTIETH DIVISION, Respondents. D E C I S I O N CALLEJO, SR., J .: Before the Court is a Petition for Review of the Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 85585 dated June 14, 2005 which set aside the decision of the Office of the Ombudsman (Visayas) finding respondent Heidi M. Estandarte guilty of grave misconduct. The antecedents are as follows: On August 17, 1998, Peoples Graftwatch, through its Chairman, Dr. Patricio Y. Tan, referred to the Office of the Ombudsman (Visayas), for immediate investigation, a complaint of the Faculty Club and Department Heads of the Ramon Torres National High School (hereinafter the Faculty Club) against Heidi Estandarte, the school principal. The complaint consisted of 33 allegations of improprieties ranging from illegal handling of school funds, irregular financial transactions, perjury, and abuse of authority. 2 However, the complaint was not subscribed and sworn to by the complainant, and not supported by the sworn statements of witnesses. The complaint also lacked a statement of non-forum shopping as required under CSC Resolution No. 95-3099 dated May 9, 1995. 3 The Ombudsman (Visayas) treated the matter as a request for assistance, and docketed the complaint as RAS-VIS 98-1030. On August 31, 1998, the Ombudsman forwarded the complaint to the Department of Education, Culture and Sports Regional Office VI (DECS-Region VI) and the Commission on Audit (COA) for appropriate action pursuant to Section 15(2) of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989. 4 On September 29, 1998, the DECS-Region VI found that the complaint did not comply with the formalities under Executive Order No. 292, otherwise known as The Administrative Code of 1987. Thus, it dismissed the complaint, without prejudice to the filing of an appropriate one. Undaunted, the Faculty Club filed a formal complaint sworn and subscribed to by the complainants with DECS-Region VI on February 5, 1999. 5 However, in a letter 6 dated February 12, 1999, the said office dismissed the complaint outright for lack of verification and certification against forum shopping. On March 22, 1999, the DECS-Region VI received the requisite verification and certification. 7 This case was entitled "Faculty and Department Heads of the Ramon Torres National High School, Bago City v. Heidi Estandarte." On April 19, 1999, the DECS-Region VI required Estandarte to answer the charges in writing. 8 Estandarte filed her answer to the complaint on June 7, 1999. 9 Thereafter, a Special Investigating Committee was created to hear the case; DECS-Region VI approved the composition of the Committee in a 1st Indorsement dated July 26, 1999. 10 The Committee issued a subpoena duces tecum addressed to the State Auditor assigned to the case, requiring him to produce the original copies of certain documents. The State Auditor, however, replied that he could not comply with the subpoena because the documents are being used by the Ombudsman (Visayas) in the criminal and administrative cases pending before it which concerned the same parties. 11
On September 17, 1999, the Committee held a pre-hearing conference. 12 It issued a 1st Indorsement on December 6, 1999, recommending the dismissal of the case on the ground of forum shopping. Meanwhile, the COA referred the complaint against Estandarte to the Provincial Auditor for the Province of Negros Occidental, Crispin A. Pinaga, Jr. Pursuant thereto, Pinaga conducted an investigation and submitted his report to the Ombudsman (Visayas). He found that Estandartes actions in connection with 24 of the 33 allegations in the complaint were "within the bounds of propriety." 13 The Provincial Auditor made the following findings: Complaint No. 2 - The collections of miscellaneous fee of Ten Pesos (P10.00) (Annex II) per student upon enrolment which was not authorized by DECS. As explained by the principal in her letter dated June 8, 1998, this practice had been going on when she assumed thereat and the same has the implied permission of the PTA (Annex III). Finding: The imposition of this miscellaneous fee of Ten Pesos (P10.00) is in violation of DECS Order No. 27 s. 1995 dated May 24, 1995 (Annex IV). Complaint 19 & 24 The principal, Miss Heidi M. Estandarte bought the .38 Caliber Handgun and Shotgun which she registered under her name, which should not be done so because the money she used to purchase said firearm came from the student government fund. Finding: The firearms as alleged by the principal were intended for the use of the security guard of the school. However, the arm dealer had secured the licenses of the firearms in the name of the principal. These firearms had been turned-over to the School Supply Officer (Annex V). Representations had been made for the transfer of the license to the school, Ramon Torres National High School (Annex VI-A). Complaint 21 & 31 She sold, kept and disbursed the income of the old newspaper with no accounting by the COA since 1994. Complaint 23 & 25 The principal Ms. Estandarte accepted cash and in kind donations without being properly channeled and accounted first by the property custodian and the cash without first [being] deposited in the Trust Fund. Finding: Cash donations as acknowledged by Ms. Heidi Estandarte are as follows:
16 Source Amount Mrs. Ma. Belen J. Elizalde (not Phil-Am Life) (Annex VI) P 10,000.00 Coca Cola Bottlers (Annex VIII) 100,000.00 Mr. Kojima (Annex IX) 53,400.00 Sales Old Newspaper (Annex X) 3,949.00 T o t a l
P167,349.00 =========== The donations and the proceeds from the sale of old newspaper were personally received and disbursed by Ms. Estandarte. However, these amounts were not acknowledged through the issuance of official receipts. Hence the donations were not taken up in the book of accounts of the school. Further these amounts were disbursed personally by the principal Ms. Heidi Estandarte who acted as the procurement and disbursing officer at the same time and in violation of the applicable law which provides to wit: Section 63, PD 1445 Accounting for Moneys and Property received by public officials Except as may otherwise be specifically provided by law or competent authority all moneys and property officially received by a public office in any capacity or upon any occasion must be accounted for as government funds and government property. Government property should be taken up in the books of the agency concerned at acquisition cost or an appraised value. Section 68 PD 1445 Issuance of Official Receipt (1) No payment of any nature shall be received by a collecting officer without immediately issuing an official receipt in acknowledgment thereof. The receipt may be in the form of postage, internal revenue or documentary stamps and the like, or officially numbered receipts, subject to proper custody, accountability and audit. Section 112 PD 1445 Recording of financial transactions Each government agency shall record its financial transactions and operation conformably with generally accepted accounting principles and in accordance with pertinent laws and regulations. In view of the foregoing findings of the Auditor, the Ombudsman (Visayas) issued the Memorandum dated October 8, 1999, with the following recommendation: 1.) This RAS be upgraded to criminal and administrative cases against Ms. Estandarte; 2.) Provincial Auditor Crispin Pinaga, Jr. be required to submit (his) Affidavit/s or sworn statement/s in order to substantiate his findings. The same is true with respect to the complaints; 3.) Upon receipt of the Affidavits of Provincial Auditor Pinaga, Jr. and the complainants, a preventive suspension order be issued against respondent Estandarte for a period as may be warranted under the circumstance, to be determined and recommended by the investigator to whom the administrative case may be assigned; and 4.) RAS-VIS-98-1030 be considered closed and terminated. 14
The Ombudsman (Visayas) decided to refer the administrative aspect of the case (OMB-VIS-ADM-99-0941, entitled "COA Region 6, Office of the Provincial Auditor v. Heidi Estandarte") to the DECS- Region VI for administrative adjudication pursuant to Section 23(2) of Rep. Act No. 6770. The complete records of the case were forwarded to the DECS-Region VI in a letter dated November 29, 1999. 15
It appeared, however, that the DECS-Region VI did not receive this referral because on December 7, 1999, it inquired on the status of RAS- VIS-98-1030 from the Ombudsman (Visayas). 16 On March 9, 2000, the Ombudsman (Visayas) inquired about the progress of the case from the DECS-Region VI, 17 and when it did not receive an answer, it sent another letter-inquiry on September 21, 2000. 18 Finally, on November 22, 2000, the Ombudsman (Visayas) received a letter from the DECS- Region VI informing it that the latter did not receive any referral concerning the case. 19 Hence, the Ombudsman (Visayas) again forwarded the records of the case to the DECS-Region VI, which received them on December 26, 2000. 20
The DECS-Region VI directed the consolidation of this case (COA Region 6, Office of the Provincial Auditor v. Heidi Estandarte) with the case pending before it (Faculty and Department Heads of the Ramon Torres National High School, Bago City v. Heidi Estandarte). 21
Thereafter, the hearing of the case by the Special Investigating Committee resumed. In view of the referral to DECS-Region VI, the Ombudsman (Visayas) considered OMB-VIS-ADM-99-0941 closed and terminated in its Memorandum of November 27, 2001. 22
In a letter 23 dated April 29, 2002, the Faculty Club requested the Ombudsman (Visayas) to take over the case for speedier disposition. Ms. Lucia Jane Grecia, a member of the Faculty Club, also wrote a letter to the Ombudsman (Visayas) complaining that she was being oppressed by Estandarte. She likewise requested the Ombudsman (Visayas) to take over the case. Consequently, on July 5, 2002, the Ombudsman (Visayas) informed the DECS-Region VI that it would not object if the case is returned to it. 24
On August 16, 2002, DECS-Region VI turned over the records of the case to the Ombudsman (Visayas) for adjudication, stating that "[i]t is the impression of this Office that the complainants intend that their case be heard by the Office of the Ombudsman and that Office had also manifested its willingness to reassume jurisdiction of the same." 25 The case was docketed as OMB-V-A-02-0572-J. On November 6, 2002, the Ombudsman (Visayas) set the case for preliminary conference. 26 In the meantime, Estandarte filed an Urgent Motion to Remand 27 the case to the DECS-Region VI on the ground that jurisdiction is now exclusively vested on the latter. On December 17, 2002, the Ombudsman (Visayas) denied the motion ratiocinating that it was not barred from assuming jurisdiction over the complaint after the DECS-Region VI had relinquished its jurisdiction over the same. 28 Estandarte filed a motion for reconsideration of said Order, which was later denied by the Ombudsman (Visayas). 29
The preliminary conference was set on May 21, 2003. On the said date, only the counsel of COA was present. The Ombudsman (Visayas),
17 therefore, issued an Order stating that in view of Estandartes failure to attend the scheduled hearing, she is deemed to have waived her right to a formal investigation unless she is able to justify her absence. In an Urgent Motion for Postponement, 30 Estandartes counsel explained that he was due to attend a hearing in another court on the scheduled day of the hearing. He manifested that they intended to challenge the Ombudsmans order denying the motion to remand the case to the DECS-Region VI through a petition for certiorari. In its Order 31 dated July 24, 2003, the Ombudsman reset the preliminary conference to July 30, 2003. On July 21, 2003, Estandarte filed a Motion to Suspend Proceedings on the ground that she filed a petition for review on certiorari with the CA assailing the order denying her motion to remand the case to the DECS-Region VI. The Ombudsman denied the motion. 32
On July 29, 2003 Estandarte filed an Urgent Motion for Postponement 33 of the hearing scheduled the following day, and a Motion for Reconsideration with Motion for Voluntary Inhibition, assailing the denial of her motion to suspend the proceedings. However, due to her failure to furnish the complainants with a copy of the motion to postpone, the Ombudsman (Visayas) proceeded with the preliminary conference with only the complainants present. Thereafter, the case was submitted for resolution. 34
In a Decision dated March 9, 2004, the Ombudsman (Visayas) found Estandarte guilty of grave misconduct, thus: WHEREFORE, premises considered, respondent Heidi Estandarte, Principal, Ramon Torres National High School, Bago City, Negros Occidental, is hereby found guilty of Grave Misconduct, and is meted the penalty of Dismissal from Service, with perpetual disqualification to hold public office and forfeiture of all benefits and cancellation of Civil Service eligibilities. 35
The Ombudsman (Visayas) held that Estandartes failure to issue receipts for the donations received in violation of Sections 63, 68, and 112 of Presidential Decree (PD) No. 1445, as well as "the appropriation for personal use of the proceeds from the sale of the old newspapers and the counterpart contribution of the students for diploma case," constitute grave misconduct. The act of submitting receipts which do not prove that disputed items were purchased suggests that Estandarte is predisposed to commit misrepresentation. 36
Estandarte filed a petition for review with prayer for the issuance of a temporary restraining order/writ of preliminary injunction with the CA. She alleged that the Ombudsman (Visayas) violated her right to due process when her request for a formal investigation was denied; that the DECS-Region VI has jurisdiction over the case; and that the Ombudsman (Visayas) failed to act with the cold neutrality of an impartial judge. 37
On September 10, 2004, the CA ordered the issuance of a TRO. 38 It later granted Estandartes application for a writ of preliminary injunction in a Resolution 39 dated November 10, 2004. On June 14, 2005, the CA issued the assailed Decision granting the petition and remanding the case to the Special Investigating Committee of the DECS-Region VI. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in the case at bench, SETTING ASIDE the decision rendered by the Office of the Ombudsman (Visayas) on March 9, 2004 in OMB-V-A-02-0572-J and the order issued by it in the same case on June 3, 2004 and ORDERING the Office of the Ombudsman (Visayas) to remand the record of OMB- VIS-ADM-99-0941 to the Special Investigating Committee of DECS- Region VI created on July 26, 1999 for the said committee to conduct further proceedings therein with utmost dispatch and eventually to submit its findings and recommendations to the Director of Public Schools for the proper disposition thereof. IT IS SO ORDERED. 40
The CA held that the Ombudsman (Visayas) acted without or in excess of jurisdiction when it took over the case after it issued a memorandum considering the case closed and terminated and after jurisdiction had already been vested in the Special Investigating Committee. Such act violates the doctrine of primary jurisdiction. Once jurisdiction is acquired by or attached to a proper investigative body or agency, such jurisdiction continues until the termination of the case. Citing Fabella v. Court of Appeals 41 and Emin v. de Leon, 42 the CA held that Rep. Act No. 4670 specifically covers and governs administrative proceedings involving public school teachers, and jurisdiction over such cases is originally and exclusively lodged with the Investigating Committee created pursuant to Section 9 of Rep. Act No. 4670. 43
The appellate court further held that, assuming the Ombudsman (Visayas) has jurisdiction, the assailed decision and order would have to be set aside because Estandarte was denied her right to substantive and procedural due process. It pointed out that she was denied the right to a formal investigation and the opportunity to be heard. Following the Courts ruling in Tapiador v. Office of the Ombudsman, 44 the CA held that the Ombudsman (Visayas) has no authority to directly impose the penalty of dismissal on those who are the subject of its investigation because its power is merely recommendatory. 45
The Ombudsman, now petitioner, submits the following issues: I. THE OFFICE OF THE OMBUDSMAN HAS FULL ADMINISTRATIVE DISCIPLINARY JURISDICTION OVER PUBLIC OFFICIALS AND EMPLOYEES UNDER ITS AUTHORITY, INCLUDING THE LESSER POWER TO ENFORCE THE SANCTIONS MPOSED ON ERRING FUNCTIONARIES, PUBLIC SCHOOL TEACHERS INCLUDED. II. THE RELIANCE BY THE HONORABLE COURT OF APPEALS ON THE OBITER DICTUM IN TAPIADOR VS. OFFICE OF THE OMBUDSMAN, 379 SCRA 322 (2002) DISPOSSESING THE OMBUDSMAN OF ITS DISCIPLINARY AUTHORITY, CONSTITUTES A GRAVE ERROR CONSIDERING THAT: THE POWER OF THE OMBUDSMAN TO IMPLEMENT ITS JUDGMENTS HAS ALREADY BEEN SETTLED BY NO LESS THAN THE HONORABLE COURT IN THE CASE OF LEDESMA [VS.] COURT OF APPEALS, ET AL., 465 SCRA 437 (2005), AND FURTHER AFFIRMED IN THE CASE OF OFFICE OF THE OMBUDSMAN VS. COURT OF APPEALS, ET AL., G.R. NO. 160675, PROMULGATED ON 16 JUNE 2006. III. THE OFFICE OF THE OMBUDSMAN DID NOT COMMIT ANY REVERSIBLE ERROR WHEN IT TOOK OVER THE ADMINISTRATIVE ADJUDICATION OF THE DISCIPLINARY
18 CASE AGAINST PRIVATE RESPONDENT ESTANDARTE. AS IN POINT OF LAW IT ACQUIRED JURISDICTION OVER THE SAID CASE WHEN THE DEPARTMENT OF EDUCATION REFERRED THE SAME TO THE OMBUDSMAN. IV. CONTRARY TO THE FINDINGS OF THE APPELLATE COURT, PRIVATE RESPONDENT ESTANDARTE WAS NOT DENIED SUBSTANTIVE AND PROCEDURAL DUE [PROCESS], AND NEITHER WAS THE ADMINISTRATIVE PROCEEDING AGAINST HER TAINTED WITH ANY IRREGULARITY, AS IN FACT THE OMBUDSMAN AFFORDED HER DUE PROCESS. V. SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE FINDINGS OF GUILT OF PRIVATE RESPONDENT ESTANDARTE WHICH WARRANTS THE IMPOSITION ON HER OF THE ADMINISTRATIVE PENALTY OF DISMISSAL FROM THE SERVICE. 46
Petitioner contends that the CA erred in holding that it is bereft of the authority to directly impose on the respondent the sanction of dismissal from service. It stresses that it has full and complete administrative disciplinary jurisdiction over public school teachers. It points out that Ledesma v. Court of Appeals 47 already declared that the ruling in the Tapiador case, that the Ombudsman has no authority to directly dismiss an employee from government service, is merely an obiter dictum. Therefore, it has the authority to determine the administrative liability of a public official or employee, and direct and compel the head of office and agency concerned to implement the penalty imposed. 48
Petitioner submits that it has concurrent disciplinary jurisdiction with the DECS over the administrative case against the respondent. Jurisdiction over the said case is not exclusive to the DECS, as the respondent is a public official and the offense charged pertains to the performance of her official functions. Consequently, there is no bar for it to take cognizance of the case after the DECS referred it for administrative adjudication. 49
Petitioner further avers that the Fabella case is not applicable to the present case because it does not involve an issue of illegal constitution of any investigating committee. Rep. Act No. 4670 provides for the administrative disciplinary procedure in cases involving public school teachers where the case is filed with the DECS. 50
Petitioner contends that the respondent was given ample opportunities to rebut the charges and defend herself from the administrative case filed against her. By her failure to comply with the order to submit a position paper, submitting instead frivolous motions that delayed the proceedings, respondent was deemed to have waived her right to a formal investigation. Petitioner points out that respondent opted for a formal investigation only when the case was submitted for resolution. 51
Finally, petitioner maintains that its finding is based on more than substantial evidence. Factual findings of administrative and quasi- judicial agencies are generally accorded not only respect but at all times finality. 52
Respondent, for her part, argues that petitioner cannot divest the DECS of its jurisdiction over the administrative case because "once jurisdiction attaches, it continues until the termination of the case." She posits that when the DECS assumed jurisdiction over the case, the petitioner was effectively precluded from assuming the same jurisdiction. 53
The pivotal issue in this petition is whether or not the DECS has exclusive jurisdiction over the case. The petition has no merit. The jurisdiction of the Ombudsman over disciplinary cases against government employees, which includes public school teachers, is vested by no less than Section 12, Article XI of the Constitution which states 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. 54
In a case of recent vintage, the Court held that the Ombudsman has full administrative disciplinary authority over public officials and employees of the government, thus: All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose the said penalty. 55
However, Section 9 of Rep. Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, provides that: Section 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That, where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. In Fabella v. Court of Appeals, 56 the Court ruled that Section 9 of Rep. Act No. 4670 reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public school teachers. And in Alcala v. Villar, 57 this Court emphasized that: Republic Act No. 6770, the Ombudsman Act of 1989, provides that the Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its
19 subdivisions, instrumentalities and agencies, including members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed by impeachment or over Members of Congress, and the Judiciary. However, in Fabella v. Court of Appeals, it was held that R.A. No. 4670, the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. 58 1a\^/phi1.net Undoubtedly, the DECS-Region VI first assumed jurisdiction over the administrative complaint against the respondent. It should be recalled that when Peoples Graftwatch forwarded the complaint to the Ombudsman (Visayas), the latter treated it as a request for assistance and referred it to the DECS-Region VI and COA for appropriate action. After it had resolved to upgrade the matter to an administrative case, the Ombudsman decided not to take cognizance of the same and refer it, instead, to the DECS-Region VI pursuant to Section 23(2) of R.A. 6770 which provides: Section 23. Formal Investigation. x x x x (2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be terminated within the period prescribed in the civil service law. Any delay without just cause in acting on any referral made by the Office of the Ombudsman shall be a ground for administrative action against the officers or employees to whom such referrals are addressed and shall constitute a graft offense punishable by a fine of not exceeding five thousand (P5,000.00). (Emphasis supplied.) We do not agree with petitioners contention that it could assume jurisdiction over the administrative case after the DECS-Region VI had voluntarily relinquished its jurisdiction over the same in favor of the petitioner. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. 59 When the complainants filed their formal complaint with the DECS-Region VI, jurisdiction was vested on the latter. It cannot now be transferred to petitioner upon the instance of the complainants, even with the acquiescence of the DECS and petitioner.1vvphi1.nt Nonetheless, even if we hold that the Ombudsman (Visayas) had concurrent jurisdiction over the administrative case, we would still sustain the DECS authority to decide the administrative case. In one case, the Court pronounced that In any event, since We are not dealing with jurisdiction but mainly with venue, considering both court concerned do have jurisdiction over the cause of action of the parties herein against each other, the better rule in the event of conflict between two courts of concurrent jurisdiction as in the present case, is to allow the litigation to be tried and decided by the court which, under the circumstances obtaining in the controversy, would, in the mind of this Court, be in a better position to serve the interests of justice, considering the nature of the controversy, the comparative accessibility of the court to the parties, having in view their peculiar positions and capabilities, and other similar factors. x x x x 60
Considering that the respondent is a public school teacher who is covered by the provisions of Rep. Act No. 4670, the Magna Carta for Public School Teachers, the DECS-Region VI is in a better position to decide the matter. Moreover, the DECS has already commenced proceedings over the administrative case by constituting the Special Investigating Committee pursuant to Section 9 of Rep. Act No. 4670. We are not unmindful of the Courts ruling in Emin v. De Leon 61
reiterated in Alcala v. Villar, 62 that a party may be estopped from assailing the jurisdiction of the DECS: As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them. In the case at bar, petitioner raised the issue of lack of jurisdiction for the first time in his amended petition for review before the CA. He did not raise this matter in his Motion to Dismiss filed before the CSC Regional Office. Notably, in his Counter- Affidavit, he himself invoked the jurisdiction of the Commission by stating that he was "open to further investigation by the CSC to bring light to the matter" and by further praying for "any remedy or judgment which under the premises are just and equitable. It is an undesirable practice of a party participating in the proceedings, submitting his case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction, when adverse. 63
However, the rulings of the Court in Alcala and de Leon are not applicable in this case. From the very start, respondent consistently protested the referral of the case back to the Ombudsman, and demanded that the same be remanded to the DECS. She refused to participate in the proceedings before the Ombudsman precisely because she believed that jurisdiction was already vested on the DECS- Region VI. Hence, she filed instead a motion to remand the case to the DECS-Region VI and motions to postpone or suspend the proceedings. On the other hand, what was striking in the Emin and Alcala cases was that the respondent therein actively participated in the proceedings before the other tribunal. WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals dated June 14, 2005 is AFFIRMED. SO ORDERED.
20
21 G.R. No. 168766 May 22, 2008 THE CIVIL SERVICE COMMISSION, petitioner, vs. HENRY A. SOJOR, respondent. D E C I S I O N REYES, R.T., J .: IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally granted to the Civil Service Commission (CSC) over all civil servants and officials? Does the assumption by the CSC of jurisdiction over a president of a state university violate academic freedom? The twin questions, among others, are posed in this petition for review on certiorari of the Decision 1 of the Court of Appeals (CA) which annulled two (2) CSC Resolutions 2 against respondent Henry A. Sojor. The Facts The uncontroverted facts that led to the controversy, as found by the CSC and the CA, are as follows: On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of the Central Visayas Polytechnic College (CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or the "Higher Education Modernization Act of 1997," was enacted. This law mandated that a Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of CVPC appointed respondent as president, with a four-year term beginning September 1998 up to September 2002. 3 Upon the expiration of his first term of office in 2002, he was appointed president of the institution for a second four-year term, expiring on September 24, 2006. 4
On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU). 5 A Board of Regents (BOR) succeeded the BOT as its governing body. Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty members before the CSC Regional Office (CSC-RO) No. VII in Cebu City, to wit: 1. ADMC DC No. 02-20(A) Complaint for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent approved the release of salary differentials despite the absence of the required Plantilla and Salary Adjustment Form and valid appointments. 6
2. ADM DC No. 02-20 Complaint for dishonesty, misconduct and falsification of official documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The complaint averred that respondent maliciously allowed the antedating and falsification of the reclassification differential payroll, to the prejudice of instructors and professors who have pending request for adjustment of their academic ranks. 7
3. ADM DC No. 02-21 Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a former part-time instructor of CVPC. It was alleged that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions against nepotism under the Administrative Code. 8
Before filing his counter-affidavits, respondent moved to dismiss the first two complaints on grounds of lack of jurisdiction, bar by prior judgment and forum shopping. He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being part of the non-competitive or unclassified service of the government, he was exclusively under the disciplinary jurisdiction of the Office of the President (OP). He argued that CSC had no authority to entertain, investigate and resolve charges against him; that the Civil Service Law contained no provisions on the investigation, discipline, and removal of presidential appointees. He also pointed out that the subject matter of the complaints had already been resolved by the Office of the Ombudsman. 9
Finding no sufficient basis to sustain respondents arguments, the CSC-RO denied his motion to dismiss in its Resolution dated September 4, 2002. 10 His motion for reconsideration 11 was likewise denied. Thus, respondent was formally charged with three administrative cases, namely: (1) Dishonesty, Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service; and (3) Nepotism. 12
Respondent appealed the actions of the regional office to the Commission proper (CSC), raising the same arguments in his motion to dismiss. 13 He argued that since the BOT is headed by the Committee on Higher Education Chairperson who was under the OP, the BOT was also under the OP. Since the president of CVPC was appointed by the BOT, then he was a presidential appointee. On the matter of the jurisdiction granted to CSC by virtue of Presidential Decree (P.D.) No. 807 14 enacted in October 1975, respondent contended that this was superseded by the provisions of R.A. No. 8292, 15 a later law which granted to the BOT the power to remove university officials. CSC Disposition In a Resolution dated March 30, 2004, 16 the CSC dismissed respondents appeal and authorized its regional office to proceed with the investigation. He was also preventively suspended for 90 days. The fallo of the said resolution states: WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic College, is hereby DISMISSED. The Civil Service Commission Regional Office No. VII, Cebu City, is authorized to proceed with the formal investigation of the cases against Sojor and submit the investigation reports to the Commission within one hundred five (105) days from receipt hereof. Finally, Sojor is preventively suspended for ninety (90) days. 17
In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC opined that his claim that he was a presidential appointee had no basis in fact or in law. CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC. We quote:
22 His appointment dated September 23, 2002 was signed by then Commission on Higher Education (CHED) Chairman Ester A. Garcia. Moreover, the said appointment expressly stated that it was approved and adopted by the Central Visayas Polytechnic College Board of Trustees on August 13, 2002 in accordance with Section 6 of Republic Act No. 8292 (Higher education Modernization Act of 1997), which explicitly provides that, "He (the president of a state college) shall be appointed by the Board of Regents/Trustees, upon recommendation of a duly constituted search committee." Since the President of a state college is appointed by the Board of Regents/Trustees of the college concerned, it is crystal clear that he is not a presidential appointee. Therefore, it is without doubt that Sojor, being the President of a state college (Central Visayas Polytechnic College), is within the disciplinary jurisdiction of the Commission. The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him since the same is exclusively lodged in the CVPC Board of Trustees, being the appointing authority, cannot be considered. The Commission and the CVPC Board of Trustees have concurrent jurisdiction over cases against officials and employees of the said agency. Since the three (3) complaints against Sojor were filed with the Commission and not with the CVPC, then the former already acquired disciplinary jurisdiction over the appellant to the exclusion of the latter agency. 18 (Emphasis supplied) The CSC categorized respondent as a third level official, as defined under its rules, who are under the jurisdiction of the Commission proper. Nevertheless, it adopted the formal charges issued by its regional office and ordered it to proceed with the investigation: Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being a third level official, is within the disciplinary jurisdiction of the Commission Proper. Thus, strictly speaking, the Commission has the sole jurisdiction to issue the formal charge against Sojor. x x x However, since the CSC RO No. VII already issued the formal charges against him and found merit in the said formal charges, the same is adopted. The CSC RO No. VII is authorized to proceed with the formal investigation of the case against Sojor in accordance with the procedure outlined in the aforestated Uniform Rules. 19 (Emphasis supplied) No merit was found by the CSC in respondents motion for reconsideration and, accordingly, denied it with finality on July 6, 2004. 20
Respondent appealed the CSC resolutions to the CA via a petition for certiorari and prohibition. He alleged that the CSC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the assailed resolutions; that CSC encroached upon the academic freedom of CVPC; and that the power to remove, suspend, and discipline the president of CVPC was exclusively lodged in the BOT of CVPC. CA Disposition On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC to cease and desist from enforcing its Resolution dated March 30, 2004 and Resolution dated July 6, 2004. 21 Thus, the formal investigation of the administrative charges against Sojor before the CSC-RO was suspended. On June 27, 2005, after giving both parties an opportunity to air their sides, the CA resolved in favor of respondent. It annulled the questioned CSC resolutions and permanently enjoined the CSC from proceeding with the administrative investigation. The dispositive part of the CA decision reads: WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service Commission acted without jurisdiction in issuing the assailed Resolution Nos. 040321 and 040766 dated March 20, 2004 and July 6, 2004, respectively, the same are hereby ANNULLED and SET ASIDE. The preliminary injunction issued by this Court on September 29, 2004 is hereby made permanent. SO ORDERED. 22
The CA ruled that the power to appoint carries with it the power to remove or to discipline. It declared that the enactment of R.A. No. 9299 23 in 2004, which converted CVPC into NORSU, did not divest the BOT of the power to discipline and remove its faculty members, administrative officials, and employees. Respondent was appointed as president of CVPC by the BOT by virtue of the authority granted to it under Section 6 of R.A. No. 8292. 24 The power of the BOT to remove and discipline erring employees, faculty members, and administrative officials as expressly provided for under Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under Section 7 of R.A. No. 9299. The said provision reads: Power and Duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of administration and exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: x x x x to fix and adjust salaries of faculty members and administrative officials and employees x x x; and to remove them for cause in accordance with the requirements of due process of law. (Emphasis added) The CA added that Executive Order (E.O.) No. 292, 25 which grants disciplinary jurisdiction to the CSC over all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters, is a general law. According to the appellate court, E.O. No. 292 does not prevail over R.A. No. 9299, 26 a special law. Issues Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO. 040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY 6, 2004. 27
23 Our Ruling The petition is meritorious. I . J urisdiction of the CSC The Constitution grants to the CSC administration over the entire civil service. 28 As defined, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporation. 29 It is further classified into career and non-career service positions. Career service positions are those where: (1) entrance is based on merit and fitness or highly technical qualifications; (2) there is opportunity for advancement to higher career positions; and (3) there is security of tenure. These include: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and (7) Permanent laborers, whether skilled, semi-skilled, or unskilled. 30
Career positions are further grouped into three levels. Entrance to the first two levels is determined through competitive examinations, while entrance to the third level is prescribed by the Career Executive Service Board. 31 The positions covered by each level are: (a) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (b) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and (c) The third level shall cover positions in the Career Executive Service. 32
On the other hand, non-career service positions are characterized by: (1) entrance not by the usual tests of merit and fitness; and (2) tenure which is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or limited to the duration of a particular project for which purpose employment was made. 33 The law states: The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. 34
It is evident that CSC has been granted by the Constitution and the Administrative Code jurisdiction over all civil service positions in the government service, whether career or non-career. From this grant of general jurisdiction, the CSC promulgated the Revised Uniform Rules on Administrative Cases in the Civil Service. 35 We find that the specific jurisdiction, as spelled out in the CSC rules, did not depart from the general jurisdiction granted to it by law. The jurisdiction of the Regional Office of the CSC and the Commission central office (Commission Proper) is specified in the CSC rules as: Section 4. Jurisdiction of the Civil Service Commission. The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it. Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees. Section 5. Jurisdiction of the Civil Service Commission Proper. The Civil Service Commission Proper shall have jurisdiction over the following cases:
24 A. Disciplinary 1. Decisions of Civil Service Regional Offices brought before it on petition for review; 2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal; 3. Complaints brought against Civil Service Commission Proper personnel; 4. Complaints against third level officials who are not presidential appointees; 5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other complaints requiring direct or immediate action, in the interest of justice; 6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices; 7. Appeals from the Order of Preventive Suspension; and 8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations. B. Non-Disciplinary 1. Decisions of Civil Service Commission Regional Offices brought before it; 2. Requests for favorable recommendation on petition for executive clemency; 3. Protests against the appointment, or other personnel actions, involving third level officials; and 4. Such other analogous actions or petitions arising out of or in relation with the foregoing enumerations. Section 6. Jurisdiction of Civil Service Regional Offices. The Civil Service Commission Regional Offices shall have jurisdiction over the following cases: A. Disciplinary 1. Complaints initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omissions were committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and the persons complained of are employees of agencies, local or national, within said geographical areas; 2. Complaints involving Civil Service Commission Regional Office personnel who are appointees of said office; and 3. Petitions to place respondent under Preventive Suspension. B. Non-Disciplinary 1. Disapproval of appointments brought before it on appeal; 2. Protests against the appointments of first and second level employees brought before it directly or on appeal. (Emphasis supplied) Respondent, a state university president with a fixed term of office appointed by the governing board of trustees of the university, is a non- career civil service officer. He was appointed by the chairman and members of the governing board of CVPC. By clear provision of law, respondent is a non-career civil servant who is under the jurisdiction of the CSC. I I . The power of the BOR to discipline officials and employees is not exclusive. CSC has concurrent jurisdiction over a president of a state university. Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under which law respondent was appointed during the time material to the present case, provides that the schools governing board shall have the general powers of administration granted to a corporation. In addition, Section 4 of the law grants to the board the power to remove school faculty members, administrative officials, and employees for cause: Section 4. Powers and Duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: x x x x h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revised compensation and classification system and other pertinent budget
25 and compensation laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the contrary not withstanding; and to remove them for cause in accordance with the requirements of due process of law. (Emphasis supplied) The above section was subsequently reproduced as Section 7(i) of the succeeding law that converted CVPC into NORSU, R.A. No. 9299. Notably, and in contrast with the earlier law, R.A. No. 9299 now provides that the administration of the university and exercise of corporate powers of the board of the school shall be exclusive: Sec. 4. Administration. The University shall have the general powers of a corporation set forth in Batas Pambansa Blg. 68, as amended, otherwise known as "The Corporation Code of the Philippines." The administration of the University and the exercise of its corporate powers shall be vested exclusively in the Board of Regents and the president of the University insofar as authorized by the Board. Measured by the foregoing yardstick, there is no question that administrative power over the school exclusively belongs to its BOR. But does this exclusive administrative power extend to the power to remove its erring employees and officials? In light of the other provisions of R.A. No. 9299, respondents argument that the BOR has exclusive power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to remove faculty members, employees, and officials of the university is granted to the BOR "in addition to its general powers of administration." This provision is essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with the enactment of the new law. For clarity, the text of the said section is reproduced below: Sec. 7. Powers and Duties of the Board of Regents. The Board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the Board of Directors of a corporation under existing laws: x x x x i. To fix and adjust salaries of faculty members and administrative officials and employees, subject to the provisions of the Revised Compensation and Position Classification System and other pertinent budget and compensation laws governing hours of service and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provision of existing law to the contrary notwithstanding; and to remove them for cause in accordance with the requirements of due process of law. 36 (Emphasis supplied) Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter. 37
All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non- career, a civil service official or employee is within the jurisdiction of the CSC. This is not a case of first impression. In University of the Philippines v. Regino, 38 this Court struck down the claim of exclusive jurisdiction of the UP BOR to discipline its employees. The Court held then: The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a) provides that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office." (Emphasis supplied) Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were considered part of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states: "The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters." As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution and now continues to be so because it was created by a special law and has an original charter. As a component of the Civil Service, UP is therefore governed by PD 807 and administrative cases involving the discipline of its employees come under the appellate jurisdiction of the Civil Service Commission. 39 (Emphasis supplied) In the more recent case of Camacho v. Gloria, 40 this Court lent credence to the concurrent jurisdiction of the CSC when it affirmed that a case against a university official may be filed either with the universitys BOR or directly with the CSC. We quote: Further, petitioner contends that the creation of the committee by the respondent Secretary, as Chairman of the
26 USP Board of Regents, was contrary to the Civil Service Rules. However, he cites no specific provision of the Civil Service Law which was violated by the respondents in forming the investigating committee. The Civil Service Rules embodied in Executive Order 292 recognize the power of the Secretary and the university, through its governing board, to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Of course under EO 292, a complaint against a state university official may be filed either with the universitys Board of Regents or directly with the Civil Service Commission, although the CSC may delegate the investigation of a complaint and for that purpose, may deputize any department, agency, official or group of officials to conduct such investigation. 41
(Emphasis supplied) Thus, CSC validly took cognizance of the administrative complaints directly filed before the regional office, concerning violations of civil service rules against respondent. I I I. Academic freedom may not be invoked when there are alleged violations of civil service laws and rules. Certainly, academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who may be taught, how it shall be taught, and who may be admitted to study. 42 Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itself the best methods to achieve their aims and objectives, free from outside coercion, except when the welfare of the general public so requires. 43
They have the independence to determine who to accept to study in their school and they cannot be compelled by mandamus to enroll a student. 44
That principle, however, finds no application to the facts of the present case. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best interest of the service. These are classified as grave offenses under civil service rules, punishable with suspension or even dismissal. 45
This Court has held that the guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. 46 For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. Lastly, We do not agree with respondents contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. 47 and Aguinaldo v. Santos 48 are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. 49 Under the principle of vox populi est suprema lex, the re- election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Resolutions of the Civil Service Commission are REINSTATED. SO ORDERED.
27 G.R. No. L-58494 July 5, 1989 PHILIPPINE NATIONAL OIL COMPANY-ENERGY DEVELOPMENT CORPORATION, petitioner, vs. HON. VICENTE T. LEOGARDO, DEPUTY MINISTER OF LABOR AND VICENTE D. ELLELINA, respondents. MELENCIO-HERRERA, J .: Through this Petition for Certiorari, Philippine National Oil Company-Energy Development Corporation (PNOC-EDC) seeks to declare null and void, for lack of jurisdiction, the Order of public respondent, the Deputy Minister of Labor, sustaining his jurisdiction over the instant controversy. Petitioner PNOC-EDC is a subsidiary of the Philippine National Oil Company (PNOC). On 20 January 1978, it filed with the Ministry of Labor and Employment, Regional Office No. VII, Cebu City (MOLE), a clearance application to dismiss/ terminate the services of private respondent, Vicente D. Ellelina, a contractual employee. The application for clearance was premised on Ellelina's alleged commission of a crime (Alarm or Public Scandal) during a Christmas party on 19 December 1977 at petitioner's camp in Uling, Cebu, when, because of the refusal of the raffle committee to give him the prize corresponding to his lost winning ticket, he tried to grab the armalite rifle of the PC Officer outside the building despite the warning shots fired by the latter. Clearance to dismiss was initially granted by MOLE but was subsequently revoked and petitioner was ordered to reinstate Ellelina to his former position, without loss of seniority rights, and with backwages from I February 1978 up to his actual reinstatement. Petitioner appealed to the Minister of Labor who, acting through public respondent, affirmed, on 14 August 1981, the appealed Order. Hence, this Petition predicated substantially on the following grounds: 1. Under Article 277 of the Labor Code, the Ministry of Labor and Employment has no jurisdiction over petitioner because it is a government-owned or controlled corporation; 2. Ellelina's dismissal is valid and just because it is based upon the commission of a crime. On the other hand, public respondent contends: (a) While the petitioner is a subsidiary of the PNOC, it is still covered by the Labor Code and, therefore, within the jurisdiction of the Ministry of Labor inasmuch as petitioner was organized as a private corporation under the Corporation Law and registered with the Securities and Exchange Commission; (b) Petitioner is estopped from assailing the Labor Department's jurisdiction, having subjected itself to the latter when it filed the application for clearance to terminate Ellelina's services; and (c) Dismissal is too harsh a penalty. The issues that confront us, therefore, are (1) whether or not public respondent committed grave abuse of discretion in holding that petitioner is governed by the Labor Code; and (2) whether or not Ellelina's dismissal was justified. Under the laws then in force, employees of government-owned and/or controlled corporations were governed by the Civil Service Law and not by the Labor Code. Thus, Article 277 of the Labor Code (PD 442) then provided: The terms and conditions of employment of all government employees, including employees of government- owned and controlled corporations shall be governed by the Civil Service Law, rules and regulations ... . In turn, the 1973 Constitution provided: The Civil Service embraces every branch, agency, subdivision and instrumentality of the government, including government-owned or controlled corporations. In National Housing Corporation vs. Juco (L-64313, January 17, 1985, 134 SCRA 172), we laid down the doctrine that employees of government-owned and/or controlled corporations, whether created by special law or formed as subsidiaries under the general Corporation Law, are governed by the Civil Service Law and not by the Labor Code. However, the above doctrine has been supplanted by the present Constitution, which provides: The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters. (Article IX-B, Section 2 [1]) Thus, under the present state of the law, the test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation such that government corporations created by special charter are subject to its provisions while those incorporated under the general Corporation Law are not within its coverage. In NASECO vs. NLRC (G.R. No. 69870, November 29,1988), we had occasion to apply the present Constitution in deciding whether or not the employees of NASECO (a subsidiary of the NIDC, which is in turn a subsidiary wholly-owned by the PNB, a government-owned corporation) are covered by the Civil Service Law or the Labor Code notwithstanding that the case arose at the time when the 1973 Constitution was still in effect. We held that the NLRC has jurisdiction over the employees of NASECO "on the premise that it is the 1987 Constitution that governs because it is the Constitution in place at the time of decision;" and that being a corporation without an original charter, the employees of NASECO are subject to the provisions of the Labor Code. We see no reason to depart from the ruling in the aforesaid case. We hold, therefore, that the PNOC-EDC having been incorporated under the general Corporation Law, is a government-owned or controlled corporation whose employees are subject to the provisions of the Labor Code. This is apparently the intendment in the NASECO case notwithstanding the fact that the NASECO therein was a subsidiary of the PNB, a government-owned corporation.
28 In so far as Ellelina is concerned, we hold that the reinstatement ordered by public respondent, without loss of seniority rights, is proper. However, consistent with the rulings of the Court, backwages should be limited to three years from 1 February 1978. The dismissal ordered by petitioner was a bit too harsh considering the nature of the act which he had committed and that it was his first offense. WHEREFORE, the Petition is DISMISSED, and the judgment of respondent public official is hereby AFFIRMED. No costs. SO ORDERED.
29 G.R. No. 67125 August 24 1990 PHILIPPINE VETERANS BANK EMPLOYEES UNION- NUBE, DOMINGO C. LOPEZ, HERMAN B. PASILIAO FELIZARDO B. SARAPAT, LADY LYDIA B. CORNISTA, ELIZABETH S. KARASIG, EDUARDO C. NIEVERA, NORMAN T. BAYODA, REGINO V. TAGUIAM, ROMULO G. GARCIA, MANUEL A. LAMAN, EDUARDO SJ. BELMONTE, HERNANI B. LIWANAG, EDUARDO P. CRUZ, DANILO N. MENDOZA, ELSA J. SILVERIO, REGINO V. TAGUIAM, JR., ALBERT G. MALAPIT, MANUEL B. GARCIA, and the Bank Employees listed in Annex "A" of this Petition, petitioners, vs. THE PHILIPPINE VETERANS BANK Now renamed PHILIPPINE MILITARY AND VETERANS BANK, GENERAL FABIAN VER in his capacity as Chairman of the Board of Directors of the Philippine Veterans Bank, and of the Board of Trustees of the Armed Forces of the Philippines Retirement and Separation Benefits System, and RAFAEL ARNALDO in his capacity as President of the Philippine Veterans Bank, respondents.
G.R. No. 82337 August 24,1990 SIMEON C. MEDALLA, GREGORIO VENTURANZA, JOSE P. JUANILLO, RAMON P. MIRANDA, ENRIQUE H.R. ABILA, PEDRO ACIERTO, SILVINO AGUDO, SANTIAGO FERNANDEZ, JUAN P. ROSETE, MAXIMO G. AQUINO, GREGORIO C. DARROLES, ISMAEL T. ESPIRITU, ERNESTO Y. GUEVARRA, MARIANO F. INFANTE, VENERANDO E. MANZO, VICENTE G. VILLADOLID, GUILLERMO A. CRUZ, JORGE MARIANO, PASCUAL SARMIENTO, RAMON P. MENDOZA, PEDRO GABRIEL, ANTONIO A. LIM, MIGUEL T. MARCOS, TOMAS T. NUFABLE, MARIANO ORTIZ, DOMINGO C. OCTAVO, MANUEL R. RAMOS, LEONCIO MANALO, DAYAN S. MAMACO, CORNELIO D. CAUNAR, MAURO DE LA CRUZ, FIDEL T. VIZMANOS, FELIPE L. VICENCIO, DAMIAN S. VITO CRUZ, JUAN LOMBREDAS, MARINA BAUTISTA, SEGUNDO M. ROSALES, CECLONDO CIEGO, CECILIO MIRANDA, FERNANDO APOSTOL, ANICETO R. NARCA, CARLOS B. LASMARIAS, RICARTE G. REYES, P.D. DELLOSON, LORETO BANTONIO ERNESTO D. LLAGUNO, CONSTANCIO SEBASTIAN, ELEUTERIO R. VALENZUELA, ISIDRO A. BATHAN, LEON G. NOLLIDO, in representation of the remainder of the 510,000 veterans or their heirs, as defined in R.A. 3518, and the PHILIPPINE VETERANS BANK, petitioners, vs. CENTRAL BANK OF THE PHILIPPINES, LIQUIDATOR OF THE PHILIPPINE VETERANS BANK, THE LIQUIDATION COURT (RTC, BRANCH 39, MANILA), SECRETARY OF THE BUDGET and THE NATIONAL TREASURER, respondents. CRUZ, J.: The Philippine Veterans Bank was created in 1963 with the hope that it would ensure the economic future and perhaps even prosperity of the hundreds of thousands of war veterans who were to be its stockholders. For a while the vision grew, but in time it dimmed and finally faded as the Bank found itself enmeshed in financial difficulties that threatened its very survival. Now the dream is in tatters. Efforts are at present being taken to piece together its severed sinews but it is doubtful if the Bank will ever be whole again. I The trouble began when on April 10, 1983, the Bank was placed under receivership by virtue of Resolution No. 334 of the Monetary Board of the Central Bank. The reason was the precarious condition of the Bank. A year later, on April 26, 1984, the Philippine Veterans Bank Employees Union questioned the retrenchment and reorganization program of the Bank and, on the ground of security of tenure, prayed that the said program be prohibited. In its petition, which was docketed as G.R. No. 67125, the Union also asked for a temporary restraining order, which was issued on May 9, 1984. Subsequently, while the case was pending, the Monetary Board ordered the liquidation of the Bank by Resolution No. 612 dated June 7, 1985, after finding that the Bank had incurred an outstanding liability of P540,835,860.79. This order was opposed by the Union in a supplemental petition for prohibition with preliminary injunction filed on September 25, 1985. On November 26,1985, the Veterans Federation of the Philippines entered the picture and filed with leave of court a petition in intervention which, besides echoing the original petition in opposing the liquidation, asserted the additional claim that it was in the process of formulating plans for the rehabilitation and eventual expansion of the Bank. This was followed by an ancillary petition for the immediate payment of the wage or salary increase ordered by the NLRC in its resolution dated September 17,1985. On March 26,1987, a writ of preliminary injunction was issued by this Court reading as follows: NOW THEREFORE, effective immediately and until further orders from this Court, you (Respondent Central Bank of the Philippines, and PVB Liquidator), your agents, representatives, and/or any person or persons acting upon your orders or in your place or stead, are hereby ENJOINED from liquidating the Phil. Veterans Bank and from taking or pursuing any act or transaction in pursuance of such liquidation, including sales or other disposal of properties of whatever kind, or disbursing PVB funds, except those incurred in the course of ordinary administration of the affairs of the bank, including payment of accrued and unpaid claims of PVB Employees under the 1982-1985 CBA, all of which should be subject to the prior approval of the respondent liquidation court. On March 18,1988, an original petition for restitution and for extraordinary and equitable writs was filed by Simeon Medalla et al. in their own right and "on behalf of the remaining 510,000 World War II veterans or their heirs." It sought inter alia a judicial declaration that the petitioners were entitled to the ownership, possession and control of the Bank and an order restraining the Central Bank from disposing of the assets of the Bank or making any disbursements therefrom except for ordinary administrative expenses and for the payment of accrued wages and other benefits of personnel as approved by the liquidator court. This petition was docketed as G.R. No. 82337 and consolidated with G.R. No. 67125. Earlier, on June 11, 1987, then Judge Abelardo M. Dayrit of the Regional Trial Court of Manila had ordered the payment of the claims of the employees amounting to P37,920,310.82. This was followed on October 21, 1988, by another order issued by the same court for the payment of retirement benefits to two former board members of the Bank, namely, Agustin Marking and Jaime S. Mejia. Upon the representations of the petitioners, however, we prevented enforcement of this order with our temporary restraining order dated January 12, 1989. On December 15, 1988, the writ of preliminary injunction dated March 26,1987, was amended "to exclude from its coverage the sale or
30 disposal by the Central Bank or the Bank Liquidator of the acquired assets of the PVB." This was done in response to petitions filed by several persons seeking to redeem or repurchase the properties which had earlier been purchased by the Bank through foreclosure sales. 1
On August 25, 1989, another ancillary petition was filed for the immediate payment of backwages of the Bank personnel on the regular payroll as of June 1985 equivalent to five months' gross salary. On May 25, 1990, the City Government of Davao filed a motion to lift the preliminary injunction dated March 26, 1987, with respect to its deposit of P3,700,000, which it wanted to withdraw to finance several programs and projects. And on June 11, 1990, Dolores V. Molina filed her own motion to withdraw her deposit of P1,l00,000.00. II The Court has purposely delayed resolution of these cases in the hope that it would not be necessary to do so in view of the efforts being taken by the Executive Department for the rehabilitation of the Bank. The agency in charge of this matter is the Special Presidential Committee on the Philippine Veterans Bank, which was created by Adm. Order No. 29 dated July 10, 1987, and renewed by Adm. Order No. 62 dated February 23, 1988 and by Adm. Order No. 90 dated September 2, 1988, to study the financial condition of the Bank and determine the feasibility of its rehabilitation. However, although we may assume that the Committee has been assiduously pursuing its objectives and while there are optimistic statements every now and then that the Bank will be reopening soon, that prospect does not really seem to be in sight yet. We have therefore decided to finally resolve these cases, applying a judicial solution which, when all is said and done, will still be less acceptable than a practical administrative settlement. III The basic issue in these petitions is whether the Central Bank has the power to liquidate the Philippine Veterans Bank. The petitioners dispute this authority. In G.R. No. 67125, they claim that as the Bank was created by a special law, a contractual relationship now exists between the Government and the stockholders of the Bank that cannot be disturbed without violation of the impairment clause. The acceptance of the benefits of that law by the petitioners had conferred a vested right on them that cannot now be withdrawn without their consent as this would constitute a deprivation of their property without due process of law. Assuming that such benefits could be validly revoked, this cannot be done by the Central Bank only but by the legislature itself which conferred the franchise on the Bank in the first place. Moreover, the Central Bank cannot exercise any authority over the Bank because the latter is itself also a government bank with the same status as the Development Bank of the Philippines, the Land Bank of the Philippines, and the Philippine National Bank. The Central Bank has no control over these government lending institutions. We sustain the position of the respondents that these arguments are not well-taken. The mere fact that the Bank was created by special law does not confer upon it extraordinary privileges over and above those granted similar charters like the Development Bank of the Philippines and the Land Bank of the Philippines. As a lending institution, it is part of the banking system and therefore covered by the regulatory power exercised over such entities by the Central Bank. Such authority is expressly provided for in the Central Bank Act, as follows: Sec. 25. Creation of the appropriate departments. In order to assure the observance of this Act and of other pertinent laws, and of the rules and regulations of the Monetary Board, the Central Bank shall have appropriate supervising and examining departments which shall be charged with the supervision and periodic or special examinations of banking institutions operating in the Philippines, including all Government credit institutions, including their subsidiaries and affiliates of non-bank financial intermediaries, and subsidiaries and affiliates of non-bank financial intermediaries performing quasi-banking functions: . . . The supervising and/or examining departments shall discharge their responsibilities in accordance with the instructions of the Monetary Board. The department heads and the examiners of the supervising and/or examining departments are hereby authorized to administer oaths to any director, officer, or employee of any institution under their respective supervision or subject to their examination and to compel the presentation of all books, documents, papers or records necessary in their judgment to ascertain the facts relative to the true condition of any institution as well as the books and records of persons and entities relative to or in connection with the operations, activities or transactions of the institution under examination. No restraining order or injunction shall be issued by the court enjoining the Central Bank from examining any institution subject to supervision or examination by the Central Bank, unless there is convincing proof that the action of the Central Bank is plainly arbitrary and made in bad faith and the petitioner or plaintiff files with the clerk or judge of the court in which the action is pending a bond executed, in favor of the Central Bank, in an amount to be fixed by the court. The restraining order or injunction shall be refused or, if granted, shall be dissolved upon filing by the Central Bank of a bond, which shall be in the form of cash or Central Bank cashier's check, in an amount twice the amount of the bond of the petitioner or plaintiff conditioned that it will pay the damages which the petitioner or plaintiff may suffer by the refusal or the dissolution of the injunction. The provisions of Rule 58 of the New Rules of Court insofar as they are applicable and not inconsistent with the provisions of this Section shall govern the issuance and dissolution of the restraining order or injunction contemplated in this Section. SEC. 25-A. The department heads and the examiners of the supervising and examining departments, in the conduct of the periodic or special examination of banking institutions may be specifically authorized by the Monetary Board to examine, inquire or look into all deposits of whatever nature with banking institutions in the Philippines including investments in debt instruments issued by the Government of the Philippines, its political subdivisions and its instrumentalities, after being satisfied that there is
31 reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity. SEC. 28. Examination and fees. It shall be the duty of the head of the appropriate supervising and examining department, personally or by deputy, at least once in every twelve months, and at such other times as either he or the Monetary Board may deem expedient, to make an examination of the books of every banking institution within the purview of this Act and make a report on the same to the Monetary Board. Every such institution shall afford to the head of the appropriate supervising and examining departments and to his authorized deputies full opportunity to examine its books, cash and available assets and general condition at any time when requested so to do by the Central Bank: Provided, however, That none of the reports and other papers relative to such examinations shall be open to inspection by the public except insofar as such publicity is incidental to the proceeding hereinafter authorized or is necessary for the prosecution of violations n connection with the business of such institutions. . . . SEC. 28-A. Appointment of conservator. Whenever, on the basis of a report submitted by the appropriate supervising or examining department, the Monetary Board finds that a bank or a non-bank financial intermediary performing quasi-banking functions is in a state of continuing inability or unwillingness to maintain a condition of liquidity deemed adequate to protect the interest of depositors and creditors, the Monetary Board may appoint a conservator to take charge of the assets, liabilities, and the management of that institution, collect all monies and debts due said institution and exercise all powers necessary to preserve the assets of the institution, reorganize the management thereof, and restore its viability. He shall have the power to overrule or revoke the actions of the previous management and board of directors of the bank or non-bank financial intermediary performing quasi-banking functions, any provision of law to the contrary notwithstanding, and such other powers as the Monetary Board shall deem necessary. As much as practicable, the conservator should not be connected with the Central Bank but should be competent and knowledgeable in bank operations and management. . . . He shall report and be responsible to the Monetary Board until such time as the Monetary Board is satisfied that the institution can continue to operate on its own and the conservatorship is no longer necessary. The conservatorship shall likewise be terminated should the Monetary Board, on the basis of the report of the conservator or of its own findings, determine that the continuance in business of the institution would involve probable loss to its depositors or creditors, in which case the provision of Section 29 shall apply. SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head of the appropriate supervising or examining department or his examiners or agents into the condition of any bank or non-bank financial intermediary performing quasi-banking functions, it shall be disclosed that the condition of the same is one of insolvency, or that its continuance in business would involve probable loss to its depositors or creditors, it shall be the duty of the department head concerned forthwith, in writing, to inform the Monetary Board of the facts. The Board may, upon finding the statements of the department head to be true, forbid the institution to do business in the Philippines and designate an official of the Central Bank or a person of recognized competence in banking or finance as receiver to immediately take charge of its assets and liabilities, as expeditiously as possible collect and gather all the assets and administer the same for the benefit of its creditors, and represent the bank personally or through counsel as he may retain in all actions or proceedings for or against the institution, exercising all the powers necessary for these purposes including, but not limited to, bringing and foreclosing mortgages in the name of the bank or non-bank financial intermediary performing quasi-banking functions. The Monetary Board shall thereupon determine within sixty days whether the institution may be recognized or otherwise placed in such a condition so that it may be permitted to resume business with safety to its depositors and creditors and the general public and shall prescribe the conditions under which such resumption of business shall take place as well as the time for fulfillment of such conditions. In such case, the expenses and fees in the collection and administration of the assets of the institution shall be determined by the Board and shall be paid to the Central Bank out of the assets of such institution. If the Monetary Board shall determine and confirm within the said period that the bank or non-bank financial intermediary performing quasi-banking functions is insolvent or cannot resume business with safety to its depositors, creditors and the general public, it shall, if the public interest requires, order its liquidation, indicate the manner of its liquidation and approve a liquidation plan which may, when warranted, involve disposition of any or all assets in consideration for the assumption of equivalent liabilities. The liquidator designated as hereunder provided shall, by the Solicitor General, file a petition in the regional trial court reciting the proceedings which have been taken and praying the assistance of the court in the liquidation of such institution. The court shall have jurisdiction in the same proceedings to assist in the adjudication of the disputed claims against the bank or non-bank financial intermediary performing quasi-banking functions and in the
32 enforcement of individual liabilities of the stockholders and do all that is necessary to preserve the assets of such institution and to implement the liquidation plan approved by the Monetary Board. The Monetary Board shall designate an official of the Central Bank or a person of recognized competence in banking or finance, as liquidator who shall take over and continue the functions of the receiver previously appointed by the Monetary Board under this Section. The liquidator shall, with all convenient speed, convert the assets of the banking institution or non-bank financial intermediary performing quasi-banking functions to money or sell, assign or otherwise dispose of the same to creditors and other parties for the purpose of paying the debts of such institution and he may, in the name of the bank or non-bank financial intermediary performing quasi- banking functions and with the assistance of counsel as he may retain, institute such actions as may be necessary in the appropriate court to collect and recover accounts and assets of such institution or defend any action filed against the institution: Provided, however, That after having reasonably established all claims against the institution, the liquidator may, with the approval of the court, effect partial payments of such claims for assets of the institution in accordance with their legal priority. The assets of an institution under receivership or liquidation shall be deemed in custodia legis in the hands of the receiver or liquidator and shall, from the moment of such receivership or liquidation, be exempt from any order of garnishment, levy, attachment, or execution. The provisions of any law to the contrary notwithstanding, the actions of the Monetary Board under this Section, Section 28-A, and the second paragraph of Section 34 of this Act shall be final and executory, and can be set aside by a court only if there is convincing proof, after hearing, that the action is plainly arbitrary and made in bad faith: Provided, That the same is raised in an appropriate pleading filed by the stockholders of record representing the majority of the capital stock within ten (10) days from the date the receiver takes charge of the assets and liabilities of the bank or non-bank financial intermediary performing quasi-banking functions or, in case of conservatorship or liquidation, within ten (10) days from receipt of notice by the said majority stockholders of said bank or non-bank financial intermediary of the order of its placement under conservatorship or liquidation. No restraining order or injunction shall be issued by any court enjoining the Central Bank from implementing its actions under this Section and the second paragraph of Section 34 of this Act in the absence of any convincing proof that the action of the Monetary Board is plainly arbitrary and made in bad faith and the petitioner or plaintiff files a bond, executed in favor of the Central Bank, in an amount to be fixed by the court. The restraining order or injunction shall be refused or, if granted, shall be dissolved upon filing by the Central Bank of a bond, which shall be in the form of cash or Central Bank cashier's check, in an amount twice the amount of the bond of the petitioner or plaintiff conditioned that it will pay the damages which the petitioner or plaintiff may suffer by the refusal or the dissolution of the injunction. The provisions of Rule 58 of the New Rules of Court insofar as they are applicable and not inconsistent with the provisions of this Section shall govern the issuance and dissolution of the restraining order or injunction contemplated in this Section. Insolvency, under this Act, shall be understood to mean that the realizable assets of a bank or a non- bank financial intermediary performing quasi- banking functions as determined by the Central Bank are insufficient to meet its liabilities. The appointment of a conservator under Section 28-A of this Act or the appointment of a receiver or liquidator under this Section shall be vested exclusively with the Monetary Board, the provision of any law, general or special, to the contrary notwithstanding. It is stressed that in Section 25 of the said Act, the Department of Supervision and Examination is charged with the supervision and periodic examination of all banking institutions operating in the Philippines, including all government credit institutions. Assuming for the moment that the Bank is owned or controlled by the government, it is nevertheless not exempt from but in fact expressly placed under the jurisdiction of the Central Bank. More to the point, R.A. No. 3518 itself, which created the Philippine Veterans Bank, provides in its Section 14 that the Bank shall be subject to the authority of the Department of Supervision and Examination. The said Section 14 reads as follows: Sec. 14. Inspection by Department of Supervision and Examination of the Central Bank. The Veterans Bank shall be subject to inspection by the Department of Supervision and Examination of the Central Bank in accordance with Republic Act Numbered Two hundred sixty-five and Republic Act Numbered Three hundred thirty-seven. The purpose of these provisions is to enable the Central Bank, as the entity charged with the responsibility of maintaining the stability of the banking and monetary systems of the country, to take the necessary steps against any banking institution whose continued operation may cause prejudice to its depositors and creditors, and the general public as well. Even if it be conceded that the charter of the Rank constitutes a contract between the Government and the stockholders of the Bank, it would not follow that the relationship cannot be altered without violating the impairment clause. This is a too simplistic conclusion that loses sight of the vulnerability of this "precious little clause," as it is called, to the inherent powers of the State when the public interest demands their exercise. The clause, according to Corwin, "is lately of negligible importance, and might well be stricken from the Constitution. For most practical purposes, in fact, it has been." 2
33 The undeniable fact is that the notion of public interest has made such considerable inroads into the constitutional guaranty that one could validly say now that it has become the exception rather than the rule. The impact of the modern society upon hitherto private agreements has left the clause in a shambles, as it were, making practically every contract susceptible to change on behalf of the public. The modern understanding is that the contract is protected by the guaranty only if it does not affect public interest, but there is hardly any contract now that does not somehow or other affect public interest as not to come under the powers of the State. Part of that understanding therefore is that, conversely, the contract may be altered validly if it involves the public interest, to which private interests must "yield as a postulate of the existing social order." In the landmark case of Norman v. Baltimore, 3 the U.S. Supreme Court stressed that every contract involving the public interest suffers a congenital infirmity, and that is its susceptibility to change whenever required by the public interest. The police power can be validly asserted to make that change to meet any one of the several great public needs, such as, in that case, regulation of the value of money. In upholding a legislative enactment providing for the payment of existing debts dollar for dollar in the current legal tender, as against contracts calling for such payment in gold coin of specified weight and fineness the decision stressed: Contracts, however express, cannot fetter the constitutional authority of the Congress. Contracts may create rights of property, but when contracts deal with a subject matter which lies within the control of the Congress, they have a congenital infirmity. Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them. The need in the case at bar is no less compelling, to wit, the preservation of the integrity and stability of our banking system. Unless adequate and determined efforts are taken by the government against distressed and mismanaged banks, public faith in the banking system is certain to deteriorate to the prejudice of the national economy itself, not to mention the losses suffered by the bank depositors, creditors, and stockholders, who all deserve the protection of the government. The government cannot simply cross its arms while the assets of a bank are being depleted through mismanagement or irregularities. It is the duty of the Central Bank in such an event to step in and salvage the remaining resources of the bank so that they may not continue to be dissipated or plundered by those entrusted with their management. The petitioners' argument that by accepting the stocks granted to them by the law, the same have become their inalienable and irrevocable property is clearly untenable. These stockholdings do not enjoy any special immunity over and above shares of stock in any other corporation, which are always subject to the vicissitudes of business. Their value may appreciate or decline or the stocks may become worthless altogether. Like any other property, they do not have a fixed but a fluctuating price. Certainly, the mere acceptance of these shares of stock by the petitioners did not create any legal assurance from the Government that their original value would be preserved and that the owners could not be deprived of such property under any circumstance no matter how justified. Nor is the charter subject to revocation only by the legislature, as the petitioners also erroneously contend. The mere circumstance that the charter was granted directly by Congress does not signify that only Congress can modify or abrogate it by another enactment. In fact, the charter itself says that the Bank shall be subject to regulation by the Central Bank which is empowered inter alia, by express provision of law, to order its liquidation. Also, by its own terms, the charter will automatically become functus officio after fifty years and the Bank itself will cease to exist unless its life is extended by positive act of the legislature. It may also be noted that quo warranto proceedings may be filed against the Bank by the Solicitor General on behalf of the Republic of the Philippines pursuant to the Rules of Court on any of the grounds enumerated in Rule 66 thereof. All these can be done without the necessity of direct legislative action and, no less importantly, without violation of the legislative will. There is also the practical difficulty of Congress itself decreeing liquidation, presumably to be made after examination of the financial condition of the Bank. In effect, the legislature, through its corresponding appropriate committees, will be undertaking the function purposely assigned by law to the Department of Examination and Supervision of the Central Bank. This is an intricate administrative function wisely entrusted by Congress to the said body, from which the petitioners would now recall it for its direct exercise by the lawmaking body. Such a procedure would bring us back to square one, so to speak, and revoke the authority confided by Congress to the Central Bank in recognition of its established expertise in the regulation of banks. Coming now to the ownership of the Bank, we find it is not a government bank, as claimed by the petitioners. The fact is that under Section 3(b) of its charter, while 51% of the capital stock of the Bank was initially fully subscribed by the Republic of the Philippines for and in behalf of the veterans, their widows, orphans or compulsory heirs, the corresponding shares of stock were to be turned over within 5 years from the organization by the Bank to the said beneficiaries who would thereafter have the right to vote such common shares. The balance of about 49% was to be divided into preferred shares which would be opened for subscription by any recognized veteran, widow, orphans or compulsory heirs of said veteran at the rate of one preferred share per veteran, on the condition that in case of failure of any particular veteran to subscribe for any preferred share of stock so offered to him within thirty (30) days from the date of receipt of notice, said share of stock shall be available for subscription to other veterans in accordance with such rules or regulations as may be promulgated by the Board of Directors. Moreover, under Sec. 6(a), the affairs of the Bank are managed by a board of directors composed of eleven members, three of whom are ex officio members, with the other eight being elected annually by the stockholders in the manner prescribed by the Corporation Law. Significantly, Sec. 28 also provides as follows: Sec. 28. Articles of incorporation. This Act, upon its approval, shall be deemed and accepted to all legal intents and purposes as the statutory articles of incorporation or Charter of the Philippine Veterans' Bank; and that, notwithstanding the provisions of any existing law to the contrary, said Bank shall be deemed registered and duly authorized to do business and operate as a commercial bank as of the date of approval of this Act. This point is important because the Constitution provides in its Article IX-B, Section 2(1) that "the Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters." As the Bank is not owned or controlled by the Government although it does have an original charter in the form of R.A. No. 3518, it clearly does not fall under the Civil Service and should be regarded as an ordinary commercial corporation. Section 28 of the said law so provides. The consequence is that the relations of the Bank with its
34 employees should be governed by the labor laws, under which in fact they have already been paid some of their claims. Applying the Labor Code, the Court rules that the petitioners' claim for back wages must be rejected. The reason is that the employees making this claim have not been illegally dismissed but lawfully separated as a result of the liquidation of the Bank on orders of higher authority. This move was not the decision of the Bank; it was forced upon it by the resolution of the Monetary Board of the Central Bank. Back pay is awarded for work that could have been performed by the employee except that he was prevented from doing so because of his illegal dismissal by the employer. It is clearly not due in the case at bar to the employees whose services were terminated as a result of the forcible closure of the Bank. As regards the claims of Marking and Mejia for the payment of their retirement benefits, which we restrained temporarily on January 12, 1989, we find with the public respondents that such payment is in order. We so hold, considering that although the said retirees are members of the board of directors, they are nevertheless covered by the Retirement Plan of the Bank per the following pertinent provisions: Article II, Section 1. The following words and phrases, as used herein shall have the meaning indicated, unless a different meaning is plainly required by the text: . . . c) "Employee" means any person who is employed by the Bank on a regular and permanent basis, including officers; and such members of the Board of Director and other hired workers not employed on a regular and permanent basis but who, because of their extended service, would qualify under the retirement categories under Article IV hereof and who for purposes of this Plan, shall be deemed employees. Article III, Section 1 Eligibility at Effective Date All employees as herein defined shall automatically be eligible to participate in the Plan, as of its effective date. (Emphasis supplied) However, for purposes of the application of Article 110 of the Labor Code, the said directors must be considered managerial employees, or officers, and so not entitled to the preference of claims granted thereunder to workers in general or the rank-and-file employees. The claims of these workers must be accorded priority over all other claims, including those of the said directors, and indeed even of the Government itself." This provision, as amended by Republic Act No. 6715, reads as follows: Article 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employer's business, his workers shall enjoy first preference as regards their unpaid wages and other monetary claims, any provision of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before the claims of the Government and other creditors may be paid. (Amendments italicized). Focusing now on G.R. No. 82337, the Court notes that the petitioners therein are asking that the ownership and management of the Bank be turned over to them in accordance with R.A. No. 3518. They point out that the deficit incurred by the Bank when its liquidation was ordered by the Central Bank in 1985 is not imputable to them and suggest they can do better in rehabilitating the Bank, given the proper support from the Government. For this reason, they ask the Court to order inter alia the Central Bank to grant them the necessary loans and other facilities, the Secretary of the Budget to certify as appropriated the amount needed to fully pay all common and preferred shares of the Bank, and the National Treasurer to release such amounts to the Bank. We agree with the Solicitor General that there is a procedural flaw in the petition, in that- The Rules of Court, the Judiciary Reorganization Act of 1980 and the Interim Rules of Court quite clearly delineate the jurisdiction of the Supreme Court in civil cases as encompassing a review on appeal only on questions of law as well as original petitions in certain special civil actions like certiorari, prohibition and mandamus. The present petition does not come under any of the above. Obviously, the petition is not an appeal from the decision of any lower court or quasi- judicial body, as in fact, the same is indeed an original petition for restitution. Also, the present petition is certainly not one for certiorari, prohibition or mandamus because there is no tribunal, board or officer that has acted without or in excess of jurisdiction or with grave abuse of discretion, or has neglected the performance of an act which the law enjoins as a duty, and from- whose acts or negligence the petitioners were supposed to have been aggrieved thereby. On the basis alone of jurisdiction, the petition at bar should be dismissed. A reading of the instant petition would show, however, that the same partakes of the nature of mandamus because it seeks judgment directing and commanding the Secretary of Budget, the National Treasurer, the CB, the Monetary Board and the PVB Liquidator to do certain specific acts. Unfortunately, the facts hereof do not present a case where such offices and officials are, by law, mandated to do the adverted acts, even less, that they have neglected to perform them. Moreover, from what has already been said of the power of the Central Bank to regulate commercial banks, and to order their liquidation whenever warranted, it would seem that the affairs of the Bank are best entrusted to the liquidator court at this time rather than managed directly by the petitioners. This is no reflection on their competence and sincerity, not to mention their genuine concern for the Bank, of which they are the intended beneficiaries and owners. It is only that, considering the expertise of the Central Bank oh this matter, and the familiarity of the liquidator court with the ramifications of the problem at hand, we feel it is advisable that they be allowed, as long as the administration has not yet adopted its own plans, to devise the proper steps to relieve the Bank of its present difficulties. III
35 The Court reiterates its hope that the administrative authorities may still find a way to rehabilitate the Bank even at this late hour. This is still possible even with this decision, for all we are saying here is that the Central Bank has the power to liquidate the Bank under existing laws and that, in the present circumstances, its liquidation may be undertaken under the control of the liquidator court in accordance with the procedure prescribed by R.A. No. 265 and the guidelines herein laid down. Such rehabilitation may still be ordered by the President of the Philippines if she sees fit, without violation of the import of this decision or of the pertinent laws here interpreted and applied. WHEREFORE, judgment is hereby rendered: (a) DISMISSING the petitions in G.R. Nos. 67125 and 82337; and (b) LIFTING the writ of preliminary injunction dated March 26, 1987, and the temporary restraining order dated January 21, 1989. Costs against the petitioners. SO ORDERED.
36
37 G.R. No. 80887 September 30, 1994 BLISS DEVELOPMENT CORPORATION EMPLOYEES UNION (BDCEU)-SENTRO NG DEMOKRATIKONG MANGGAGAWA (SDM), petitioner, vs. HON. PURA FERRER CALLEJA and BLISS DEVELOPMENT CORPORATION, respondents. Capulong, Magpantay, Ladrido, Canilao and Malabanan for private respondent. KAPUNAN, J .: The focal issue in the case at bench is whether or not Bliss Development Corporation (BDC) is a government-owned controlled corporation subject to Civil Service Laws, rules and regulations. Corollary to this issue is the question of whether or not petitioner is covered by Executive Order No. 180 and must register under Section 7 thereof as a precondition for filing a petition for certification election. The antecedents of the case are: On October 10, 1986, petitioner, a duly registered labor union, filed with the Department of Labor, National Capital Region, a petition for certification election of private respondent Bliss Development Corporation (BDC). Based on the position papers submitted by the parties, Med-Arbiter Napoleon V. Fernando, in an order dated January 26, 1987, dismissed the petition for lack of jurisdiction stating that the majority of BDC's stocks is owned by the Human Settlement Development Corporation (HSDC), a wholly-owned government corporation. Therefore, BDC is subject to Civil Service law, rules and regulations. The pertinent portion of said Order reads: It may not be amised (sic) to further state that the Supreme Court in its Decision in the case of National Housing Corporation versus Benjamin Juco and the National Labor Relations Commission G-R 63313 promulgated on January 17, 1985 has pronounced that: There should no longer be any question at this time that employees of government owned or controlled corporations are governed by the Civil Service Rules and Regulations. Corollary to the issue of whether or not employees of BDC may form or join labor organizations therefore is the issue of whether or not BDC is a government owned corporation. The pertinent law on the matter is P.D. No. 2029 which provides that: Section 2 Definition A government-owned or controlled corporation is a stock or non-stock corporation whether performing government or proprietary functions, which is directly chartered by special law or if organized under the general corporation law is owned or controlled by the government or subsidiary corporation, to the extent of at least a majority of its outstanding capital stock or of its outstanding voting stock. In the case at bar, it is not disputed that majority of the stocks of BDC are owned by Human Settlement Development Corporation, a wholly government owned corporation, hence, this Office cannot, but otherwise conclude that Bliss Development Corporation is a government owned corporation whose employees are governed not by the Labor Code but by the Civil Service law, rules, and regulations. Its employees therefore, are prohibited to join or form labor organization. Further, this Office is without authority to entertain the present petition for obvious lack of jurisdiction. Indeed, Opinion No. 94, series of 1985, the Minister of Justice has declared: In determining whether a corporation created under the Corporation Code is government owned or controlled or not, this ministry has consistently applied the ownership test whereby a corporation will be deemed owned by the government if the majority of its voting stocks are owned by the government. It appearing that Human Settlement Development Corporation (HSDC), which is a wholly-owned government corporation, owns a majority of the stocks of Bliss Development Corporation (BDC), our conclusion is that BDC is a government- owned corporation subject to the coverage of the Civil Service law, rules and regulations as pronounced by the Supreme Court in the case of NHA versus Juco. 1
Petitioner then filed an appeal with the Bureau of Labor Relations. In the meantime, or on June 1, 1987 Executive Order No. 180 was issued the then President Corazon C. Aquino extending to government employees the right to organize and bargain collectively. Sections 1 and 7 of said Order provide: Sec. 1. This Executive Order applies to all employees of all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters. . . . (Emphasis supplied)
38 Sec. 7. Government employees' organizations shall register with the Civil Service Commission and the Department of Labor and Employment. The application shall be filed with the Bureau of Labor Relations of the Department which shall process the same in accordance with the provisions of the Labor Code of the Philippines, as amended. Applications may also be filed with the Regional Offices of the Department of Labor and Employment which shall immediately transmit the said applications to the Bureau of Labor Relations within three (3) days from receipt hereof. On August 7, 1987, Director Pura Ferrer-Calleja of the Bureau of Labor Relations issued an Order dismissing the appeal. Said Order is reproduced hereunder: For disposition is an appeal of the Bliss Development Corporation Employees Union Sentro ng Demokratikong Manggagawa (BDCEU-SDM) from the Order of the Med- Arbiter dismissing its petition for direct certification/certification election dated January 26, 1987. On January 26, 1987, the Med-Arbiter issued an Order dismissing the petition filed by BDCEU- SDM. He ruled that the Bliss Development Corporation which is under the then Ministry of Human Settlement, is a government Corporation where the workers are prohibited from organizing and joining labor unions. The Med-Arbiter cited Opinion No. 94 series of 1985, of the Minister of Justice which is hereunder quoted as follows: In determining whether a corporation created under the Corporation Code is government-owned or a controlled or not, this Ministry has consistently applied the ownership test whereby a corporation will be deemed owned by the government if all or a majority of its stocks are owned by the government, and it will be deemed controlled by the government, if the majority of its voting stocks are owned by the government. It appearing that HSDC, which is a wholly-owned government corporation, owns a majority of the stocks of BDC, our conclusion is that BDC is a government-owned corporation subject to the coverage of the Civil Service Law and rules as pronounced by the Supreme Court in the case of NHA vs. Juco. But circumstances have changed. With the issuance of Executive Order No. 180 dated June 1, 1987, government employees are now given the right to organize and bargain collectively. This, therefore, renders academic the order subject of the appeal. xxx xxx xxx Consequently, this Bureau hereby enjoins the Petitioner to register in accordance with the aforecited provision. Meantime, the petition is dismissed without prejudice to its refiling after petitioner is granted registration to avoid legal complications. WHEREFORE, in view of the foregoing, the case is hereby dismissed without prejudice. SO ORDERED. 2
Taking exception to the Director's Order, petitioner brought the instant petition to annul the same on the following grounds: I THE DIRECTOR GRAVELY ABUSED HER DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN SHE ORDERED PETITIONER TO REGISTER UNDER SECTION 7 OF EXECUTIVE ORDER NO. 180 WHICH DOES NOT COVER PETITIONER; II THE DIRECTOR GRAVELY ABUSED HER DISCRETION WHEN SHE INSISTED ON ENFORCING AN OPINION OF THE MINISTER OF JUSTICE WHICH RESPONDENT BDC ITSELF HAS CONSISTENTLY IGNORED AND CONTINUES TO IGNORE AND WHICH THE ENTIRE GOVERNMENT DOES NOT CARE TO ENFORCE. 3
In a resolution dated May 29, 1989 the Court gave due course to the petition and required the parties to file their respective memoranda which was complied with. The Solicitor General begged leave to be relieved from filing a comment on the petition and a memorandum, averring that he could not sustain the position of respondent Director. The petition is impressed with merit. Section 1 of Executive Order No. 180 expressly limits its application to only government-owned or controlled corporations with original charters. Hence, public respondent's order dated August 7, 1987 requiring petitioner to register in accordance with Section 7 of executive Order No. 180 is without legal basis. Without categorically saying so, public respondent sustained the Med- Arbiter's invocation of the case of National Housing Corporation v. Juco, 4 which rules that the inclusion of "government-owned or controlled corporations" within the embrace of the civil service shows a deliberate effort of the framers of the 1973 Constitution to plug an earlier loophole which allowed government-owned or controlled corporations to avoid the full consequences of the all encompassing coverage of the civil service system. In said case, we stressed that: Section 1 of Article XII-B, Constitution uses the word "every" to modify the phrase "government- owned or controlled corporation."
39 Every means each one of a group, without exception. It means all possible and all, taken one by one. Of course, our decision in this case refers to a corporation created as a government-owned or controlled entity. . . . . 5
However, our ruling in NHC v. Juco 6 case, which was decided under the 1973 Constitution, lost its applicability with the advent of the 1987 Constitution. Thus, in National Service Corporation v. NLRC, 7 we held that: . . . (I)n the matter of coverage by the civil service of government-owned or controlled corporations, the 1987 Constitution starkly varies from the 1973 Constitution, upon which National Housing Corporation vs. Juco is based. Under the 1973 Constitution, it was provided that: The civil service embraces every branch, agency, subdivision, and instrumentality of the Government, including every government-owned or controlled corporation. . . . [Constitution, 1973, Art. II-B, Sec. I(1)] On the other hand, the 1987 Constitution provides that: The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charter. (Emphasis supplied) [Constitution (1987), Art. IX- B, Sec. 2(1). Thus the situations sought to be avoided by the 1973 Constitution and expressed by the Court in the National Housing Corporation case in the following manner The infirmity of the respondents' position lies in its permitting a circumvention or emasculation of Section 1, Article XII-B of the Constitution. It would be possible for a regulate ministry of government to create a host of subsidiary corporations under the Corporation Code funded by a willing legislature. A government- owned corporation could create several subsidiary corporations. These subsidiary corporations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their incomes would not be subject to the competitive restrains of the open market nor to the terms and conditions of civil service employment. Conceivably, all government-owned or controlled corporations could be created, no longer by special charters, but through incorporations under the general law. The Constitutional amendment including such corporations in the embrace of the civil service would cease to have application. Certainly, such a situation cannot be allowed to exist. [134 SCRA 182-183] appear relegated to relative insignificance by the 1987 Constitutional provision that the Civil Service embraces government-owned or controlled corporations with original charter; and, therefore, by clear implication, the Civil Service does not include government-owned or controlled corporations which are organized as subsidiaries of government-owned or controlled corporations under the general corporation law. 8
A corporation is created by operation of law. It acquires a judicial personality either by special law or a general law. The general law under which a private corporation may be formed or organized is the Corporation Code, the requirements of which must be complied with by those wishing to incorporate. Only upon such compliance will the corporation come into being and acquire a juridical personality, thus giving rise to is right to exist and act as a legal entity. On the other hand, a government corporation is normally created by special law, referred to often as a charter. 9
BDC is a government-owned corporation created under the Corporation Law. It is without a charter, governed by the Labor Code and not by the Civil Service Law hence, Executive Order No. 180 does not apply to it. Consequently, public respondent committed grave abuse of discretion in ordering petition to register under Section 7, of Executive Order No. 180 as a precondition for filing a petition for certification election. WHEREFORE, the instant petition is hereby GRANTED. The order of public respondent dated August 7, 1987 is SET ASIDE and the Director of Labor Relations is hereby directed to give due course of petitioner's application for certification election. SO ORDERED.
40
41 G.R. Nos. 140199-200 February 6, 2002 FELICITO S. MACALINO, petitioner, vs. SANDIGANBAYAN and OFFICE OF THE OMBUDSMAN, respondents. D E C I S I O N PARDO, J .: The case is a petition for certiorari 1 assailing the jurisdiction of the Ombudsman and the Sandiganbayan to take cognizance of two criminal cases 2 against petitioner and his wife Liwayway S. Tan, contending that he is not a public officer within the jurisdiction of the Sandiganbayan. 3
On September 16, 1992, the Special Prosecutor, Office of the Ombudsman, with the approval of the Ombudsman, filed with the Sandiganbayan two informations against petitioner and Liwayway S. Tan charging them with estafa through falsification of official documents (Criminal Case No. 18022) and frustrated estafa through falsification of mercantile documents (Criminal Case No. 19268), as follows: "CRIMINAL CASE NO. 18022 "That on or about the 15th day of March, 1989 and for sometime prior or subsequent thereto, in the Municipality of Mandaluyong, Metro Manila, and within the jurisdiction of this Honorable Court, the above- named accused, FELICITO S. MACALINO, being then the Assistant Manager of the Treasury Division and the Head of the Loans Administration & Insurance Section of the Philippine National Construction Corporation (PNCC), a government-controlled corporation with offices at EDSA corner Reliance St., Mandaluyong, and hence, a public officer, while in the performance of his official functions, taking advantage of his position, committing the offense in relation to his office and conspiring and confederating with his spouse LIWAYWAY S. TAN, being then the owner of Wacker Marketing, did then and there willfully, unlawfully, feloniously and by means of deceit defraud the Philippine National Construction Corporation in the following manner: in preparing the application with the Philippine National Bank, Buendia Branch for the issuance of a demand draft in the amount of NINE HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED EIGHTY-TWO & 11/100 PESOS (P983,682.11), Philippine Currency, in favor of Bankers Trust Company, accused FELICITO S. MACALINO superimposed the name "Wacker Marketing" as payee to make it appear that the demand draft was payable to it, when in truth and in fact and as the accused very well knew, it was the Bankers Trust Company which was the real payee as indicated in Check Voucher No. 3-800-89 and PNB Check No. B236746 supporting said application for demand draft; subsequently accused FELICITO S. MACALINO likewise inserted into the letter of PNCC to PNB Buendia Branch the words "payable to Wacker Marketing" to make it appear that the demand drafts to be picked up by the designated messenger were payable to Wacker Marketing when in truth and in fact the real payee was Bankers Trust Company; and as a result of such acts of falsification, PNB Buendia issued 19 demand drafts for P50,000.00 each and another demand draft for P33,682.11, all, payable to Wacker Marketing, which were subsequently delivered to accused Felicitor S. Macalino and which accused LIWAYWAY S. TAN thereafter exchanged with PNB Balanga Branch for 19 checks at P50,000.00 each and another for P33,682.11 and all of which she later deposited into Account No. 0042-0282-6 of Wacker Marketing at Philtrust Cubao, thereby causing pecuniary damage and prejudice to Philippine National Construction Corporation in the amount of P983,682.11. "CONTRARY TO LAW. "Manila, Philippines, August 24, 1992." 4
"CRIMINAL CASE NO. 19268 "That on or about the 4th day of April, 1990, and subsequently thereafter, in the Municipality of Mandaluyong, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, FELICITO S. MACALINO, being then the Assistant Manager of the Treasury Division and the Head of the Loans Administration and Insurance Section of the Philippine National Construction Corporation, a government-controlled corporation with offices at EDSA corner Reliance St., Mandaluyong, Metro Manila, and hence, a public officer, while in the performance of his official functions, taking advantage of his position, committing the offense in relation to his office, and conspiring and confederating with his spouse LIWAYWAY S. TAN, being then the owner of Wacker Marketing, did then and there willfully, unlawfully, feloniously and by means of deceit defraud the Philippine National Construction Corporation in the following manner: after receiving Check Voucher No. 04-422-90 covering the partial payment by PNCC of the sinking fund to International Corporate Bank (Interbank) as well as Check No. 552312 for TWO MILLION TWO HUNDRED FIFTY THOUSAND PESOS (P2,250,000.00), Philippine Currency, payable to Interbank for the purpose, accused FELICITO S. MACALINO falsified PNB Check No. 552312 by altering the payee indicated therein to make it appear that the aforesaid check was payable to Wacker Marketing instead of Interbank and further falsified the schedule of check disbursements sent to PNB Buendia by making it appear therein that the payee of Check No. 552312 was Wacker Marketing when in truth and in fact and as the accused very well knew, it was Interbank which was the real payee; accused LIWAYWAY S. TAN thereafter deposited Check No. 552312 into Account No. 0042-0282-6 of Wacker Marketing at Philtrust Cubao and Wacker Marketing subsequently issued Philtrust Check No. 148039 for P100,000.00 in favor of accused FELICITO S. MACALINO; which acts of falsification performed by the accused would have defrauded the Philippine National Construction Corporation of P2,250,000.00 had not PNB Buendia ordered the dishonor of Check No. 552312 after noting the alteration/erasures thereon, thereby failing to produce the felony by reason of causes independent of the will of the accused. "CONTRARY TO LAW. "Manila, Philippines, May 28, 1993." 5
Upon arraignment on November 9, 1992, petitioner pleaded not guilty to the charges. Hence, trial proceeded. 6
However, during the initial presentation of evidence for the defense, petitioner moved for leave to file a motion to dismiss on the ground that the Sandiganbayan has no jurisdiction over him since he is not a public officer because the Philippine National Construction Corporation (PNCC), formerly the Construction and Development Corporation of the Philippines (CDCP), is not a government-owned or controlled corporation with original charter. 7 The People of the Philippines opposed the motion. 8
On August 5, 1999, the Sandiganbayan promulgated a resolution denying petitioners motion to dismiss for lack of merit. 9
42 Hence, this petition. 10
The Issue The sole issue raised is whether petitioner, an employee of the PNCC, is a public officer within the coverage of R. A. No. 3019, as amended. The Courts Ruling Petitioner contends that an employee of the PNCC is not a public officer as defined under Republic Act No. 3019, as follows: "Sec. 2. (a) xxx xxx xxx. "(b) Public officer includes elective and appointive officials and employees, permanent or temporary, whether in the unclassified or classified or exempted service receiving compensation, even nominal, from the government as defined in the preceding paragraph." We agree. To resolve the issue, we resort to the 1987 Constitution. Article XI, on the Accountability of Public Officers, provides: "Section 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 x x x." "Section 13. The Office of the Ombudsman shall have 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 or employee, office or agency, when such act or omission appears to be illegal, unjust, improper and inefficient. x x x "2. Direct, upon complaint or at its instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporations with original charters, 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." (underscoring supplied) Further, Article IX-B, Section 2 (1) of the 1987 Constitution provides: "The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned and controlled corporations with original charters." (underscoring supplied) Republic Act No. 6770 provides: "Section 15. Powers, Functions and Duties -The Office of the Ombudsman shall have the following powers, functions and duties: "1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. x x x. "2. Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charters, 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." Inasmuch as the PNCC has no original charter as it was incorporated under the general law on corporations, it follows inevitably that petitioner is not a public officer within the coverage of R. A. No. 3019, as amended. Thus, the Sandiganbayan has no jurisdiction over him. The only instance when the Sandiganbayan has jurisdiction over a private individual is when the complaint charges him either as a co- principal, accomplice or accessory of a public officer who has been charged with a crime within the jurisdiction of Sandiganbayan. 11
The cases 12 cited by respondent People of the Philippines are inapplicable because they were decided under the provisions of the 1973 Constitution which included as public officers, officials and employees of corporations owned and controlled by the government though organized and existing under the general corporation law.1wphi1 The 1987 Constitution excluded such corporations. The crimes charged against petitioner were committed in 1989 and 1990. 13 The criminal actions were instituted in 1992. It is well-settled that "the jurisdiction of a court to try a criminal case is determined by the law in force at the institution of the action." 14
The Fallo IN VIEW WHEREOF, the Court GRANTS the petition. The Court SETS ASIDE the order dated July 29, 1999 of the Sandiganbayan in Criminal Cases Nos. 18022 and 19268 and ORDERS the DISMISSAL of the two (2) cases against petitioner and his wife. No costs. SO ORDERED.
Christopher B. Keehn, Stephanie K. Haley, Gordon Charles Keehn, Robert Franklin Keehn v. Carolina Casualty Insurance Co., 758 F.2d 1522, 11th Cir. (1985)