G.R. No.

103144 April 4, 2001

PHILSA INTERNATIONAL PLACEMENT and SERVICES CORPORATION, petitioner,

vs.
THE HON. SECRETARY OF LABOR AND EMPLOYMENT, VIVENCIO DE MESA, RODRIGO MIKIN and
CEDRIC LEYSON, respondents.

GONZAGA-REYES, J.:

This is a petition for certiorari from the Order dated November 25, 1991 issued by public respondent Secretary
of Labor and Employment. The November 25, 1991 Order affirmed in toto the August 29, 1988 Order of the
Philippine Overseas Employment Administration (hereinafter the "POEA") which found petitioner liable for three
(3) counts of illegal exaction, two (2) counts of contract substitution and one count of withholding or unlawful
deduction from salaries of workers in POEA Case No. (L) 85-05-0370.

Petitioner Philsa International Placement and Services Corporation (hereinafter referred to as "Philsa") is a
domestic corporation engaged in the recruitment of workers for overseas employment. Sometime in January
1985, private respondents, who were recruited by petitioner for employment in Saudi Arabia, were required to
pay placement fees in the amount of P5,000.00 for private respondent Rodrigo L. Mikin and P6,500.00 each for
private respondents Vivencio A. de Mesa and Cedric P. Leyson.1

After the execution of their respective work contracts, private respondents left for Saudi Arabia on January 29,
1985. They then began work for Al-Hejailan Consultants A/E, the foreign principal of petitioner.

While in Saudi Arabia, private respondents were allegedly made to sign a second contract on February 4, 1985
which changed some of the provisions of their original contract resulting in the reduction of some of their
benefits and privileges.2 On April 1, 1985, their foreign employer allegedly forced them to sign a third contract
which increased their work hours from 48 hours to 60 hours a week without any corresponding increase in their
basic monthly salary. When they refused to sign this third contract, the services of private respondents were
terminated by Al-Hejailan and they were repatriated to the Philippines.3

Upon their arrival in the Philippines, private respondents demanded from petitioner Philsa the return of their
placement fees and for the payment of their salaries for the unexpired portion of their contract. When petitioner
refused, they filed a case before the POEA against petitioner Philsa and its foreign principal, Al-Hejailan., with
the following causes of action:

1. Illegal dismissal;

2. Payment of salary differentials;

3. Illegal deduction/withholding of salaries;

4. Illegal exactions/refund of placement fees; and

5. Contract substitution. 4

The case was docketed as POEA Case No. (L) 85-05 0370.

Under the rules of the POEA dated May 21, 1985, complaints involving employer-employee relations arising
out of or by virtue of any law or contract involving Filipino workers for overseas employment, including money
claims, are adjudicated by the Workers' Assistance and Adjudication Office (hereinafter the "WAAO") thru the
POEA Hearing Officers.5 On the other hand, complaints involving recruitment violations warranting suspension
or cancellation of the license of recruiting agencies are cognizable by the POEA thru its Licensing and
Recruitment Office (hereinafter the "LRO"). 6 In cases where a complaint partakes of the nature of both an
employer-employee relationship case and a recruitment regulation case, the POEA Hearing Officer shall act as
representative of both the WAAO and the LRO and both cases shall be heard simultaneously. In such cases,
the Hearing Officer shall submit two separate recommendations for the two aspects of the case. 7

In the case at bench, the first two causes of action were in the nature of money claims arising from the
employer-employee relations and were properly cognizable by the WAAO. The last two causes of action were
in the nature of recruitment violations and may be investigated by the LRO. The third cause of action, illegal
deduction/withholding of salary, is both a money claim and a violation of recruitment regulations and is thus
under the investigatory jurisdiction of both the WAAO and the LRO.
Several hearings were conducted before the POEA Hearing Officer on the two aspects of private respondents'
complaint. During these hearings, private respondents supported their complaint with the presentation of both
documentary and testimonial evidence. When it was its turn to present its evidence, petitioner failed to do so
and consequently, private respondents filed a motion to decide the case on the basis of the evidence on
record. 8

On the aspects of the case involving money claims arising from the employer-employee relations and illegal
dismissal, the POEA rendered a decision dated August 31, 1988 9 , the dispositive portion of which reads:

"CONFORMABLY TO THE FOREGOING, judgment is hereby rendered ordering respondent PHILSA

INTERNATIONAL PLACEMENT AND SERVICE CORPORATION to pay complainants, jointly and
severally with its principal Al-Hejailan, the following amounts, to wit:

1. TWO THOUSAND TWO HUNDRED TWENTY FIVE SAUDI RIYALS (SR2,225.00) to each
complainant, representing the refund of their unpaid separation pay;

2. ONE THOUSAND SAUDI RIYALS (SR1,000.00) for V.A. de Mesa alone, representing the salary
deduction from his March salary;

3. TWO THOUSAND SAUDI RIYALS (SR2,000.00) each for R.I. Mikin and C.A.P. Leyson only,
representing their differential pay for the months of February and March, 1985; and

4. Five percent (5%) of the total awards as and by way of attorney's fees.

All payments of the abovestated awards shall be made in Philippine Currency equivalent to the
prevailing exchange rate according to the Central Bank at the time of payment.

All other claims of complainants as well as the counterclaims of respondent are dismissed for lack of
merit.

SO ORDERED." 10

Under the Rules and Regulations of the POEA, the decision of the POEA-Adjudication Office on matters
involving money claims arising from the employer-employee relationship of overseas Filipino workers may be
appealed to the National Labor Relations Commission (hereinafter the "NLRC)11 . Thus, as both felt aggrieved
by the said POEA Decision, petitioner and private respondents filed separate appeals from the August 31,
1988 POEA Decision to the NLRC.

In a decision dated July 26, 1989 12 , the NLRC modified the appealed decision of the POEA Adjudication
Office by deleting the award of salary deductions and differentials. These awards to private respondents were
deleted by the NLRC considering that these were not raised in the complaint filed by private respondents. The
NLRC likewise stated that there was nothing in the text of the decision which would justify the award.

Private respondents filed a Motion for Reconsideration but the same was denied by the NLRC in a Resolution
dated October 25; 1989.

Private respondents then elevated the July 26, 1989 decision of the NLRC to the Supreme Court in a petition
for review for certiorari where it was docketed as G.R. No. 89089. However, in a Resolution dated October 25,
1989, the petition was dismissed outright for "insufficiency in form and substance, having failed to comply with
the Rules of Court and Circular No. 1-88 requiring submission of a certified true copy of the questioned
resolution dated August 23, 1989." 13

Almost simultaneous with the promulgation of the August 31, 1988 decision of the POEA on private
respondents' money claims, the POEA issued a separate Order dated August 29, 1988 14 resolving the
recruitment violations aspect of private respondents' complaint. In this Order, the POEA found petitioner guilty
of illegal exaction, contract substitution, and unlawful deduction. The dispositive portion of this August 29, 1988
POEA Order reads:

"WHEREFORE, premises considered, this Office finds herein respondent PHILSA International
Placement and Services Corporation liable for three (3) counts of illegal exaction, two (2) counts of
contract substitution and one count of withholding or unlawful deduction from salaries of workers.
 Accordingly, respondent is hereby ordered to refund the placement fees in the amount of P2,500.00 to
Rodrigo L. Mikin, P4,000.00, each, to Vivencio A. de Mesa and Cedric A.P. Leyson plus restitution of
the salaries withheld in the amount of SR1,000.00 to Vivencio A. de Mesa.

Moreover, respondent's license is hereby suspended for eight (8) months to take effect immediately
and to remain as such until full refund and restitution of the above-stated amounts have been effected
or in lieu thereof, it is fined the amount of SIXTY THOUSAND (P60,000.00) PESOS plus restitution.

SO ORDERED."

In line with this August 29, 1988 Order, petitioner deposited the check equivalent to the claims of private
respondents and paid the corresponding fine under protest. From the said Order, petitioner filed a Motion for
Reconsideration which was subsequently denied in an Order dated October 10, 1989.

Under the POEA Rules and Regulations, the decision of the POEA thru the LRO suspending or canceling a
license or authority to act as a recruitment agency may be appealed to the Ministry (now Department) of Labor
and Employment. 15 Accordingly, after the denial of its motion for reconsideration, petitioner appealed the
August 21, 1988 Order to the Secretary of Labor and Employment. However, in an Order dated September 13,
1991,16 public respondent Secretary of Labor and Employment affirmed in toto the assailed Order. Petitioner
filed a Motion for Reconsideration but this was likewise denied in an Order dated November 25, 1991.

Hence, the instant Petition for Certiorari where petitioner raises the following grounds for the reversal of the
questioned Orders:

THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION IN HOLDING PETITIONER GUILTY OF ILLEGAL EXACTIONS.
THE FINDING IS NOT SUPPORTED BY EVIDENCE AND IN ANY EVENT, THE LAW ON WHICH
THE CONVICTION IS BASED IS VOID.

II

THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION IN PENALIZING PETITIONER WITH CONTRACT SUBSTITUTION.
IN THE PREMISES, THE CONTRACT SUBSTITUTION IS VALID AS IT IMPROVED THE TERMS
AND CONDITIONS OF PRIVATE RESPONDENTS' EMPLOYMENT.

III.

THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN EXCESS OF JURISDICTION, OR WITH

GRAVE ABUSE OF DISCRETION IN HOLDING PETITIONER LIABLE FOR ILLEGAL
DEDUCTIONS/WITHHOLDING OF SALARIES FOR THE SUPREME COURT ITSELF HAS ALREADY
ABSOLVED PETITIONER FROM THIS CHARGE.

With respect to the first ground, petitioner would want us to overturn the findings of the POEA, subsequently
affirmed by the Secretary of the Department of Labor and Employment, that it is guilty of illegal exaction
committed by collecting placement fees in excess of the amounts allowed by law. This issue, however, is a
question of fact which cannot be raised in a petition for certiorari under Rule 65. 17 As we have previously held:

"It should be noted, in the first place, that the instant petition is a special civil action for certiorari under
Rule 65 of the Revised Rules of Court. An extraordinary remedy, its use is available only and
restrictively in truly exceptional cases wherein the action of an inferior court, board or officer performing
judicial or quasi-judicial acts is challenged for being wholly void on grounds of jurisdiction. The sole
office of the writ of certiorari is the correction of errors of jurisdiction including the commission of grave
abuse of discretion amounting to lack or excess of jurisdiction. It does not include correction of public
respondent NLRC's evaluation of the evidence and factual findings based thereon, which are generally
accorded not only great respect but even finality." 18

The question of whether or not petitioner charged private respondents placement fees in excess of that allowed
by law is clearly a question of fact which is for public respondent POEA, as a trier of facts, to determine. As
stated above, the settled rule is that the factual findings of quasi-judicial agencies like the POEA, which have
acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only
respect, but at times even finality if such findings are supported by substantial evidence. 19

On this point, we have carefully examined the records of the case and it is clear that the ruling of public
respondent POEA that petitioner is guilty of illegal exaction is supported by substantial evidence. Aside from
the testimonial evidence offered by private respondents, they also presented documentary evidence consisting
of receipts issued by a duly authorized representative of petitioner which show the payment of amounts in
excess of those allowed by the POEA. In contrast, petitioner did not present any evidence whatsoever to rebut
the claims of private respondents despite the many opportunities for them to do so.

Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA Memorandum Circular No.
11, Series of 1983, which enumerated the allowable fees which may be collected from applicants, is void for
lack of publication.

There is merit in the argument.

In Taada vs. Tuvera 20 , the Court held, as follows:

"We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution: Administrative rules and regulations must also be published if
their purpose is to enforce or implement existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and the public, need not be published. Neither is publication required of the
so-called letter of instructions issued by the administrative superiors concerning the rules or guidelines
to be followed by their subordinates in the performance of their duties."

Applying this doctrine, we have previously declared as having no force and effect the following administrative
issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment
Accreditation Committee regarding the accreditation of hospitals, medical clinics and laboratories; 21 b) Letter of
Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining
companies to the national government; 22 c) Memorandum Circulars issued by the POEA regulating the
recruitment of domestic helpers to Hong Kong; 23 d) Administrative Order No. SOCPEC 89-08-01 issued by the
Philippine International Trading Corporation regulating applications for importation from the People's Republic
of China;24 and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and
Management discontinuing the payment of other allowances and fringe benefits to government officials and
employees. 25 In all these cited cases, the administrative issuances questioned therein were uniformly struck
down as they were not published or filed with the National Administrative Register as required by the
Administrative Code of 1987. 26

POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same was
never published or filed with the National Administrative Register.

POEA Memorandum Order No. 2, Series of 1983 provides for the applicable schedule of placement and
documentation fees for private employment agencies or authority holders. Under the said Order, the maximum
amount which may be collected from prospective Filipino overseas workers is P2,500.00. The said circular was
apparently issued in compliance with the provisions of Article 32 of the Labor Code which provides, as follows:

"ARTICLE 32. Fees to be paid by workers. Any person applying with a private fee-charging
employment agency for employment assistance shall not be charged any fee until he has obtained
employment through its efforts or has actually commenced employment. Such fee shall be always
covered with the approved receipt clearly showing the amount paid. The Secretary of Labor shall
promulgate a schedule of allowable fees." (italic supplied)

It is thus clear that the administrative circular under consideration is one of those issuances which should be
published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid
delegation. 27 Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been
published or filed with the National Administrative Register, the same is ineffective and may not be enforced.
The Office of the Solicitor General argues however that the imposition of administrative sanctions on petitioner
was based not on the questioned administrative circular but on Article 32 and Article 34 (a) 28 of the Labor
Code.

The argument is not meritorious. The said articles of the Labor Code were never cited, much less discussed, in
the body of the questioned Orders of the POEA and Secretary of Labor and Employment. In fact, the said
Orders were consistent in mentioning that petitioner's violation of Administrative Circular No. 2, Series of 1983
was the basis for the imposition of administrative sanctions against petitioner. Furthermore, even assuming that
petitioner was held liable under the said provisions of the Labor Code, Articles 32 and 34 (a) of the Labor Code
presupposes the promulgation of a valid schedule of fees by the Department of Labor and Employment.
Considering that, as, previously discussed, Administrative Circular No. 2, Series of 1983 embodying such a
schedule of fees never took effect, there is thus no basis for the imposition of the administrative sanctions
against petitioner. Moreover, under Book VI, Chapter II, Section 3 of the Administrative Code of 1987, "(r)ules
in force on the date of the effectivity of this Code which are not filed within three (3) months from that date shall
not thereafter be the basis of any sanction against any party or persons." Considering that POEA
Administrative Circular No. 2 was never filed with the National Administrative Register, the same cannot be
used as basis for the imposition of administrative sanctions against petitioner.

The Office of the Solicitor General likewise argues that the questioned administrative circular is not among
those requiring publication contemplated by Taada vs. Tuvera as it is addressed only to a specific group of
persons and not to the general public.

Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely private employment agencies or
authority holders, does not take it away from the ambit of our ruling in Taada vs. Tuvera. In the case of Phil.
Association of Service Exporters vs. Torres,29 the administrative circulars questioned therein were addressed to
an even smaller group, namely Philippine and Hong Kong agencies engaged in the recruitment of workers for
Hong Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars may not be
enforced or implemented.

Our pronouncement in Taada vs. Tuvera is clear and categorical. Administrative rules and regulations must
be published if their purpose is to enforce or implement existing law pursuant to a valid delegation., The only
exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of
instructions issued by administrative superiors concerning the rules and guidelines to be followed by their
subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been
shown to fall under any of these exceptions.

In this regard, the Solicitor General's reliance on the case of Yaokasin vs. Commissioner of Customs 30 is
misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their
lack of publication as they were addressed to a particular class of persons, the customs collectors, who were
also the subordinates of the Commissioner of the Bureau of Customs. As such, the said Memorandum Orders
clearly fall under one of the exceptions to the publication requirement, namely those dealing with instructions
from an administrative superior to a subordinate regarding the performance of their duties, a circumstance
which does not obtain in the case at bench.

With respect to the second ground, petitioner would want us to review the findings of fact of the POEA
regarding the two counts of alleged contract substitution. Again, this is a question of fact which may not be
disturbed if the same is supported by substantial evidence. A reading of the August 29, 1988 Order of the
POEA shows that, indeed, the ruling that petitioner is guilty of two (2) counts of prohibited contract substitution
is supported by substantial evidence. Thus:

"2. As admitted by respondent, there was definitely a contract of substitution in the first count. The first
contract was duly approved by the Administration and, therefore, the parties are bound by the terms
and condition thereof until its expiration. The mere intention of respondents to increase the number of
hours of work, even if there was a corresponding increase in wage is clear violation of the contract as
approved by the Administration, and notwithstanding the same, the amendment is evidently contrary to
law, morals, good customs and public policy and hence, must be shunned (Art. 1306, Civil Code of the
Philippines, Book III, Title I, Chapter 1, Article 83, Labor Code of the Philippines, as amended).
Moreover, it would appear that the proposed salary increase corresponding to the increase in number
of work bonus may just have been a ploy as complainant were (sic) thereafter not paid at the increased
rate.
 As to contract substitution in the second part, a third contract was emphatically intended by respondent
to be signed by complainants which, however, was not consummated due to the adamant refusal of
complainants to sign thereon. Mere intention of the respondent to commit contract substitution for a
second time should not be left unpunished. It is the duty of this Office to repress such acts by teaching
agencies a lesson to avoid repetition of the same violation." 31

With respect to the third ground, petitioner argues that the public respondent committed grave abuse of
discretion in holding petitioner liable for illegal deductions/withholding of salaries considering that the Supreme
Court itself has already absolved petitioner from this charge. Petitioner premises its argument on the fact that
the July 26, 1989 Decision of the NLRC absolving it from private respondent de Mesa's claim for salary
deduction has already attained finality by reason of the dismissal of private respondents' petition for certiorari of
the said NLRC decision by the Supreme Court.

Petitioner is correct in stating that the July 26, 1989 Decision of the NLRC has attained finality by reason of the
dismissal of the petition for certiorari assailing the same. However, the said NLRC Decision dealt only with the
money claims of private respondents arising from employer-employee relations and illegal dismissal and as
such, it is only for the payment of the said money claims that petitioner is absolved. The administrative
sanctions, which are distinct and separate from the money claims of private respondents, may still be properly
imposed by the POEA. In fact, in the August 31, 1988 Decision of the POEA dealing with the money claims of
private respondents, the POEA Adjudication Office precisely declared that "respondent's liability for said money
claims is without prejudice to and independent of its liabilities for the recruitment violations aspect of the case
which is the subject of a separate Order." 32

The NLRC Decision absolving petitioner from paying private respondent de Mesa's claim for salary deduction
based its ruling on a finding that the said money claim was not raised in the complaint. 33 While there may be
questions regarding such finding of the NLRC, the finality of the said NLRC Decision prevents us from
modifying or reviewing the same. But the fact that the claim for salary deduction was not raised by private
respondents in their complaint will not bar the POEA from holding petitioner liable for illegal deduction or
withholding of salaries as a ground for the suspension or cancellation of petitioner's license.

Under the POEA Rules and Regulations, the POEA, on its own initiative, may conduct the necessary
proceeding for the suspension or cancellation of the license of any private placement agency on any of the
grounds mentioned therein. 34 As such, even without a written complaint from an aggrieved party, the POEA
can initiate proceedings against an erring private placement agency and, if the result of its investigation so
warrants, impose the corresponding administrative sanction thereof. Moreover, the POEA, in an investigation of
an employer-employee relationship case, may still hold a respondent liable for administrative sanctions if, in the
course of its investigation, violations of recruitment regulations are uncovered. 35 It is thus clear that even if
recruitment violations were not included in a complaint for money claims initiated by a private complainant, the
POEA, under its rules, may still take cognizance of the same and impose administrative sanctions if the
evidence so warrants.

As such, the fact that petitioner has been absolved by final judgment for the payment of the money claim to
private respondent de Mesa does not mean that it is likewise absolved from the administrative sanctions which
may be imposed as a result of the unlawful deduction or withholding of private respondents' salary. The POEA
thus committed no grave abuse of discretion in finding petitioner administratively liable of one count of unlawful
deduction/withholding of salary.

To summarize, petitioner should be absolved from the three (3) counts of illegal exaction as POEA
Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against
petitioner for lack of publication. However, we affirm the ruling of the POEA and the Secretary of Labor and
Employment that petitioner should be held administratively liable for two (2) counts of contract substitution and
one (1) count of withholding or unlawful deduction of salary.

Under the applicable schedule of penalties imposed by the POEA, the penalty for each count of contract
substitution is suspension of license for two (2) months or a fine of P10,000.00 while the penalty for withholding
or unlawful deduction of salaries is suspension of license for two (2) months or fine equal to the salary withheld
but not less than P10,000.00 plus restitution of the amount in both instances.36 Applying the said schedule on
the instant case, the license of petitioner should be suspended for six (6) months or, in lieu thereof, it should be
ordered to pay fine in the amount of P30,000.00. Petitioner should likewise pay the amount of SR1,000.00 to
private respondent Vivencio A. de Mesa as restitution for the amount withheld from his salary.

WHEREFORE, premises considered, the September 13, 1991 and November 25, 1991 Orders of public
respondent Secretary of Labor and Employment are hereby MODIFIED. As modified, the license of private
respondent Philsa International Placement and Services Corporation is hereby suspended for six (6) months
or, in lieu thereof, it is hereby ordered to pay the amount of P30,000.00 as fine. Petitioner is likewise ordered to
pay the amount of SR1,000.00 to private respondent Vivencio A. de Mesa. All other monetary awards are
deleted.

SO ORDERED.

G.R. No. 156063 November 18, 2003

MELECIO ALCALA, PERLA ALCALA, ROQUE BORINAGA, DIOSDADA BORINAGA, HELEN LENDIO, and
MARY BABETH MAGNO, petitioners,
vs.
JOVENCIO VILLAR, respondent.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure assailing the July
31, 2002 Decision1 of the Court of Appeals in CA-G.R. SP No. 57391 which nullified and set aside the June 22,
1999 Resolution of the Office of the Ombudsman in OMB-VIS-ADM-98-0103, as well as the Resolution2 dated
October 25, 2002 denying petitioners motion for reconsideration.

Respondent Jovencio D. Villar is the School Principal of Lanao National High School, Pilar, Cebu City. In
February 1998, Rolando Torceno and petitioners, Melecio Alcala, Perla Alcala, Roque Borinaga, Helen Lendio,
Emma Labaniego and Mary Babeth Mano, all teachers of Lanao National High School, as well as Asterio
Villarante and petitioner Diosdada Borinaga, teachers of Dapdap National High School, Pilar, Dapdap, Cebu
City (herein collectively referred to as complainants), filed with the Office of the Ombudsman an administrative
complaint against respondent for dishonesty.3

Complainants alleged that on August 18-22, 1997, they attended a mass training/seminar at the Consolacion
National High School, Consolacion, Cebu. Respondent asked them to submit their respective Certificates of
Appearance for the preparation of the vouchers for the refund of their expenses during the said
training/seminar. Thereafter, they received from respondent the following amounts as refund:

1. Perla Alcala - P280.00

2. Roque Borinaga - 310.00

3. Mary Babeth Magno - 160.00

4. Emma Labaniego - 130.00

5. Asterio Villarante - 130.00

6. Melecio Alcala - 280.00

7. Diosdado Borinaga - 310.00

8. Rolando Torceno - 130.00

9. Helen Lendio - 130.004

Upon verification with the Department of Education Culture and Sports (DECS) Division Office, complainants
discovered that each of them were issued checks in the amount of P312.00 as reimbursement, and that
respondent received the same by forging their signature.

Complainants further alleged that sometime in November 1997, Melecio Alcala, Diosdada Borinaga, Helen
Lendio, and Rolando Torceno received from respondent P1,500.00 each representing Loyalty Benefits. They
learned, however, from the DECS Division Office that they were entitled to receive P2,000.00 each.5

Respondent, on the other hand, claimed that he was in fact authorized by the complainants to claim and
encash their checks at the E and E Lending Investors where most of them have existing loans. He contended
that their school is located in the rural area where no banks are operating, such that it has been the practice of
teachers to authorize the principal to claim, receive and encash the checks in their behalf. He explained that
complainants did not receive the entire amount of P312.00 because they authorized the E and E Lending
Investors to deduct certain amounts from their checks as payment for their respective loans.6 As for the Loyalty
Benefits, respondent alleged that complainants received the entire amount due them and that he deducted
nothing therefrom.7 He asserted that the real reason behind the filing of the complaint was to force him to
resign so that one of the complainants could apply for his post.8

On June 22, 1999, the Office of the Ombudsman issued a resolution finding respondent guilty of dishonesty
and dismissing him from service. The dispositive portion thereof reads:

WHEREORE, in view of the foregoing, respondent is meted the penalty of DISMISSAL FROM SERVICE WITH
FORFEITURE OF ALL BENEFITS AND DISQUALIFICATION TO HOLD PUBLIC OFFICE.

SO RESOLVED.9

A motion for reconsideration was filed by respondent; however, the same was denied on October 13, 1999.10

On appeal, the Court of Appeals nullified and set aside the decision of the Office of the Ombudsman on the
ground that the latter was without jurisdiction over administrative complaints against public school teachers. It
ruled that the governing law is Republic Act No. 4670, otherwise known as the Magna Carta for Public School
Teachers, and not Republic Act No. 6770, the Ombudsman Act of 1989. Thus

WHEREFORE, the Ombudsmans Resolution dated June 22, 1999 and Order dated October 13, 1999 are
hereby NULLIFIED and SET ASIDE, without prejudice to the ventilation of the charges against respondent-
appellant before the proper forum.

SO ORDERED.11

Petitioners motion for reconsideration was denied on October 25, 2002.12

Hence, the instant petition.

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 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.13 However, in Fabella v. Court of Appeals,14 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. Section 9 of said law expressly provides that

Sec. 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a
committee composed of the corresponding School Superintendent of the Division or a duly authorized
representative who would at least have the rank of a division supervisor, where the teacher belongs, as
chairman, a representative of the local or, in its absence, any existing provincial or national teachers
organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools.
The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty
days from the termination of the hearings: Provided, however, that where the school superintendent is the
complainant or an interested party, all the members of the committee shall be appointed by the Secretary of
Education.

The foregoing provision implements the Declaration of Policy of the statute, that is, to promote the "terms of
employment and career prospects" of schoolteachers.

Likewise, in Emin v. De Leon,15 the Court ruled that although under Presidential Decree No. 807 (Civil Service
Law), 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, the Civil Service Commission does not have original jurisdiction over an administrative case against a
public school teacher. It was stressed therein that jurisdiction over administrative cases of public school
teachers is lodged with the Investigating Committee created pursuant to Section 9 of R.A. No. 4670, now being
implemented by Section 2, Chapter VII of DECS Order No. 33, S. 1999, otherwise known as the DECS Rules
of Procedure.16
The foregoing notwithstanding, the Court of Appeals erred when it nullified the proceedings before the Office of
the Ombudsman. Indeed, the question of jurisdiction may be tackled motu proprio on appeal even if none of the
parties raised the same.17 This rule, however, is not absolute. In Emin v. De Leon,18 a public school teacher
was administratively charged with and found guilty of dishonesty under P.D. No. 807 (Civil Service Law). The
Supreme Court ruled that R.A. No. 4670, the Magna Carta for Public School Teachers, is the applicable law
and that the Civil Service Commission does not have jurisdiction over the administrative case. Nevertheless,
the Court affirmed the dismissal from service of the public school teacher as the latter was found to have been
sufficiently afforded due process. It was held that what is crucial is that the respondent be given sufficient
1awp++i1

opportunity to be heard and defend himself. Thus

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.

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. 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.19

In the case at bar, respondent was amply afforded due process in an administrative proceeding, the essence of
which is an opportunity to explain ones side or an opportunity to seek reconsideration of the action or ruling
complained of.20 Not only did respondent file a counter-affidavit and a motion for reconsideration, he also
participated in the hearings conducted by the Office of the Ombudsman and was given the opportunity to
cross-examine the witnesses against him. Verily, participation in the administrative proceedings without raising
any objection thereto amounts to a waiver of jurisdictional infirmities.21

In the same vein, respondent in this case should be barred under the principle of estoppel by laches from
assailing the jurisdiction of the Ombudsman. Therefore, the Court of Appeals should have resolved the appeal
on its merits, considering that respondents right to procedural due process was properly observed.

WHEREFORE, in view of all the foregoing, the July 31, 2002 Decision of the Court of Appeals in CA-G.R. SP
No. 57391 which nullified the Resolution dated June 22, 1999 and Order dated October 13, 1999 of the Office
of the Ombudsman, is REVERSED and SET ASIDE. Let this case be REMANDED to the Court of Appeals for
determination of the appeal on its merits.

SO ORDERED.

G.R. No. 144464 November 27, 2001

GILDA G. CRUZ and ZENAIDA C. PAITIM, petitioner,

vs.
THE CIVIL SERVICE COMMISSION, respondent.

KAPUNAN, J.:

Assailed in the instant petition is the decision of the Court of Appeals upholding Resolution No. 981695 of the
Civil Service Commission for allegedly being contrary to law and jurisprudence.
The facts are as follows:

On September 9, 1994, the Chairperson of the Civil Service Commission (CSC), received a letter from a
private individual, Carmelita B. Esteban, claiming that, during the examinations for non-professional in the
career civil service, given by the Civil Service Commission, on July 30, 1989 in Quezon City, Zenaida C.
Paitim, the Municipal Treasurer of Norzagaray, Bulacan, falsely pretending to be the examinee, Gilda Cruz, a
co-employee in the said office, took the examinations for the latter. Carmelita Esteban requested the CSC to
investigate the matter, appending to said letter, pictures purporting to be those of Gilda Cruz and Zenaida
Paitim.

On September 20, 1994, Erlinda A. Rosas, Director IV of the Commission, issued a Memorandum to Eliseo
Gatchalian, the Director of the Management Information Office of the Commission, requesting the latter to
furnish her with the picture seat plan of the room where Gilda G. Cruz was during the said examination, to
ascertain the veracity of the letter-complaint. Eliseo S. Gatchalian did furnish Erlinda Rosas with certified true
copies of the picture seat plans of the rooms where Gilda G. Cruz was assigned not only in the 1989 but also in
the 1987 and 1988 career service (sub-professional) examinations. On November 8, 1994, Erlinda Rosas
thereby wrote a Memorandum to Civil Service Commissioner Thelma P. Gaminde, dated November 8, 1994,
declaring that based on the record, she found a prima facie case against Zenaida Paitim and Gilda G. Cruz.

On the basis of said memorandum, a fact finding investigation was conducted. On March 31, 1995, a "Formal
Charge" for "Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service" signed
by Bella Amilhasan, Director IV of the Civil Service Commission Regional Office No. 3 was filed against Gilda
Cruz and Zenaida C. Paitim, with the Civil Service Commission, docketed as Administrative Case No. D3-9S-
052, which reads as follows:

FORMAL CHARGE

MESDAMES:

This Office has found after a fact finding investigation that a prima facie case exists against you for
DISHONESTY, GRAVE MISCONDUCT and CONDUCT PREJUDICIAL TO THE BEST INTEREST OF
THE SERVICE, committed as follows:

"That Gilda Cruz applied to take the July 30, 1989 Career Service Subprofessional
examination. A verification of our records revealed that the picture of Cruz pasted in the Picture
Seat Plan of the said examination held at Room 21 of the Ramon Magsaysay Elementary
School, Quezon City, bears no resemblance to the pictures of Cruz as appearing in the picture
seat plans of the previous Career Service Subprofessional Examinations which she took last
July 26, 1987 and July 31, 1988 respectively. It would appear that the purported picture of Cruz
pasted in the Picture Seat Plan of the said July 30, 1989 examination is the picture of a different
person. Further verification showed that this picture belongs to a certain Zenaida Paitim,
Municipal Treasurer of Norzagaray, Bulacan who apparently took the said examination on
behalf of Cruz and on the basis of the application bearing the name and personal
circumstances of Cruz."

WHEREFORE, Gilda Cruz and Zenaida Paitim are hereby directed to answer in writing and under oath
within five (5) days from receipt hereof. To support your Answer, you may submit supporting
documents/sworn statements.

In your Answer, you should state whether you elect to have a formal investigation or waive your right to
said investigations should your Answer be found not satisfactory.

You are advised that you are entitled to the assistance of a counsel.

By Authority of the Commission:

(Sgd.) Bella A. Amilhasan

Director IV1

The petitioners filed their Answer to the charge entering a general denial of the material averments of the
"Formal Charge." They also declared that they were electing a formal investigation on the matter. The
petitioners subsequently filed a Motion to Dismiss averring that if the investigation will continue, they will be
deprived of their right to due process because the Civil Service Commission was the complainant, the
Prosecutor and the Judge, all at the same time.

On July 17, 1995, Director Bella A. Amilhasan issued an order denying the motion.2 The subsequent motion for
reconsideration of said order was likewise dismissed.

Dulce J. Cochon, Attorney III of the CSC was thereby directed to conduct the formal administrative
investigation of petitioners' case.

On November 16, 1995, Dulce J. Cochon issued an "Investigation Report and Recommendation" finding the
Petitioners guilty of "Dishonesty" and ordering their dismissal from the government service, the decretal portion
of which reads as follows:

WHEREFORE, foregoing premises considered, this Office recommends the dismissal from the service
with all its accessory penalties of respondents Zenaida Paitim and Gilda Cruz, both employees of the
Municipality of Norzagaray, Bulacan for the offenses of Dishonesty, Grave Misconduct and Conduct
Prejudicial to the Best Interest of the Service. Furthermore, this Office recommends the filing of criminal
charges against them that shall serve as a deterrent to all possible plans of making a mockery to the
sanctity of Civil Service Law and Rules as well as the constitutional mandate that 'A public office is a
public trust. (Idem. Supra.)3

The aforesaid "Investigation Report and Recommendation" was then forwarded, to the Civil Service
Commission for its consideration and resolution.

On July 1, 1998, the Civil Service Commission issued Resolution No. 981695 finding the petitioners guilty of
the charges and ordered their dismissal from the government service. The decretal portion reads as follows:

WHEREFORE, Zenaida Paitim and Gilda Cruz are hereby found guilty of Dishonesty. Accordingly, they
are imposed the penalty of dismissal from the service with all its accessory penalties. The Civil Service
(Subprofessional) Eligibility of Gilda Cruz is also cancelled.

Let a copy of this Resolution, as well as other relevant documents, be furnished the Office of the
Ombudsman for whatever action it may take under the premises."4

Petitioners then went up to the Court of Appeals assailing the resolution of the CSC.

On November 29, 1999, the Court of Appeals dismissed the petition before it. The motion for reconsideration
was, likewise, denied on August 9, 2000.

Hence, this petition.

In the instant petition, petitioners raised the following assignment of errors:

THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT PETITIONERS'
CONSTITUTIONAL RIGHT TO DUE PROCESS WAS NOT VIOLATED IN ADMINISTRATIVE CASE
NO. D3-95-052 WHERE RESPONDENT COMMISSION ACTED AS THE INVESTIGATOR, THE
COMPLAINANT, THE PROSECUTOR, AND THE JUDGE, ALL AT THE SAME TIME, AGAINST
PETITIONERS. IN SO DOING, RESPONDENT COMMISSION COMMITTED A MOCKERY OF
ADMINISTRATIVE JUSTICE AND THE COURT OF APPEALS SANCTIONED IT.

II

THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN RULING THAT RESPONDENT
COMMISSION HAS ORIGINAL JURISDICTION TO HEAR AND DECIDE A COMPLAINT OR CHARGE
WHETHER FILED BY A PRIVATE CITIZEN OR BY THE CIVIL SERVICE COMMISSION ITSELF. THE
LAW VESTS IN RESPONDENT COMMISSION ONLY APPELLATE, NOT ORIGINAL, JURISDICTION
IN ALL ADMINISTRATIVE CASES AGAINST A PUBLIC OFFICIAL OR EMPLOYEE INVOLVING THE
IMPOSITION OF A PENALTY OF REMOVAL OR DISMISSAL FROM OFFICE WHERE THE
COMPLAINT THEREFORE WAS NOT FILED BY A PRIVATE CITIZEN AS IN ADMINISTRATIVE
CASE NO. D3-95-052 OF RESPONDENT COMMISSION.5
We find no merit in the petition.

There is no question that petitioner Zenaida Paitim, masquerading herself as petitioner Gilda Cruz, took the
civil service examinations in her behalf. Gilda Cruz passed the examinations. On the basis of a tip-off that the
two public employees were involved in an anomalous act, the CSC conducted an investigation and verified that
the two employees were indeed guilty of dishonesty. Thus, in accordance with the CSC law, the petitioners
merited the penalty of dismissal.

Petitioners maintain that the CSC did not have original jurisdiction to hear and decide the administrative case.
Allegedly, in accordance with Section 47(1), Chapter 7, Subtitle A, Title 1, Book V, Administrative Code of
1987, the CSC is vested with appellate jurisdiction only in all administrative cases where the penalty imposed is
removal or dismissal from the office and where the complaint was filed by a private citizen against the
government employee.6It reads:

SECTION 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty
days, or a fine in an amount exceeding thirty days' salary, demotion in rank or salary or
transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a
private citizen against a government official or employee in which case it may hear and decide the case
or it may deputize any department or agency or official or group of officials to conduct the investigation.
The results of the investigation shall be submitted to the Commission with recommendation as to the
penalty to be imposed or other action to be taken.7

(Emphasis supplied.)

Petitioners' invocation of the law is misplaced. The provision is applicable to instances where administrative
cases are filed against erring employees in connection with their duties and functions of the office. This is,
however, not the scenario contemplated in the case at bar. It must be noted that the acts complained of arose
from a cheating caused by the petitioners in the Civil Service (Subprofessional) examination. The examinations
were under the direct control and supervision of the Civil Service Commission. The culprits are government
employees over whom the Civil Service Commission undeniably has jurisdiction. Thus, after the petitioners
were duly investigated and ascertained whether they were indeed guilty of dishonesty, the penalty meted was
dismissal from the office.

Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations explicitly provides that the CSC can
rightfully take cognizance over any irregularities or anomalies connected to the examinations, as it reads:

Sec. 28. The Commission shall have original disciplinary jurisdiction over all its officials and employees
and over all cases involving civil service examination anomalies or irregularities."

Petitioners' contention that they were denied due process of law by the fact that the CSC acted as investigator,
complainant, prosecutor and judge, all at the same time against the petitioners is untenable. The CA correctly
explained that the CSC is mandated to hear and decide administrative case instituted by it or instituted before it
directly or on appeal including actions of its officers and the agencies attached to it pursuant to Book V, Title 1,
Subtitle A, Chapter 3, Section 12, paragraph 11 of the Administrative Code of 1987 which states:

(11) Hear and decide administrative cases instituted by or brought before it directly or on appeal,
including contested appointments, and review decisions and actions of its offices and of the agencies
attached to it. Officials and employees who fail to comply with such decisions, orders, or rulings shall be
liable for contempt of the Commission. Its decisions, orders, or rulings shall be final and executory.
Such decisions, orders, or rulings may be brought to the Supreme Court on certiorari by the aggrieved
party within thirty (30) days from receipt of a copy thereof;

The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As
an administrative body, its decision was based on substantial findings. Factual findings of administrative
bodies, being considered experts in their field, are binding on the Supreme Court.8 The records clearly disclose
that the petitioners were duly investigated by the CSC and found that:

After a careful examination of the records, the Commission finds respondents guilty as charged.

The photograph pasted over the name Gilda Cruz in the Picture Seat Plan (PSP) during the July 30,
1989 Career Service Examination is not that of Cruz but of Paitim. Also, the signature over the name of
Gilda Cruz in the said document is totally different from the signature of Gilda Cruz.
 It should be stressed that as a matter of procedure, the room examiners assigned to supervise the
conduct of a Civil Service examination closely examine the pictures submitted and affixed on the
Picture Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners carefully
compare the appearance of each of the examinees with the person in the picture submitted and affixed
on the PSP. In cases where the examinee does not look like the person in the picture submitted and
attached on the PSP, the examiner will not allow the said person to take the examination (CSC
Resolution No. 95-5195, Taguinay, Ma. Theresa)

The facts, therefore, that Paitim's photograph was attached over the name of Gilda Cruz in the PSP of
the July 30, 1989 Career Service Examination, shows that it was Paitim who took the examination.

In a similar case, the Commission ruled:

"It should be stressed that the registered examinee's act of asking or allowing another person to
take the examination in her behalf constitutes that the evidence on record clearly established
that another person took the Civil Service Examination for De Guzman, she should be held
liable for the said offense."

At the outset, it is axiomatic that in the offense of impersonation, two persons are always involved. In the
instant case, the offense cannot prosper without the active participation of both Arada and de Leon. Thus, the
logical conclusion is that de Leon took the examination for and in behalf of Arada. Consequently, they are both
administratively liable. (Arada, Carolina C. and de Leon, Ponciana Anne M.)9

It can not be denied that the petitioners were formally charged after a finding that a prima facie case for
dishonesty lies against them. They were properly informed of the charges. They submitted an Answer and
were given the opportunity to defend themselves. Petitioners can not, therefore, claim that there was a denial
of due process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. We do
not find reversible error with the decision of the Court of Appeals in upholding the CSC Resolution.

WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

RACHEL BEATRIZ RUIVIVAR, G.R. No. 165012

Petitioner, Present:

- versus - QUISUMBING, J., Chairperson,

OFFICE OF THE OMBUDSMAN CARPIO-MORALES,

and DR. CONNIE BERNARDO, TINGA,

Respondents. VELASCO, JR., and

Brion, jj.

Promulgated:

September 16, 2008

x------------------------------------------------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

Before us is the petition for review on certiorari under Rule 45 of the Rules of Court commenced by Rachel
Beatriz Ruivivar (petitioner). It seeks to set aside:
(a) the Decision of the Court of Appeals (CA)1 dated May 26, 20042 dismissing the petition for certiorari filed by
the petitioner and affirming the Decision dated November 4, 20023 (November 4, 2002 Decision) and the Order
dated February 12, 20034 (February 12, 2003 Order) of the Office of the Ombudsman (Ombudsman); the
Ombudsman's Decision and Order found the petitioner administratively liable for discourtesy in the course of
official duties as Chairperson of the Land Transportation Office (LTO) Accreditation Committee on Drug
Testing, and imposed on her the penalty of reprimand; and

(b) the CA Resolution dated August 20, 20045 which denied the petitioner's subsequent motion for
reconsideration.

THE ANTECEDENTS

On May 24, 2002, the private respondent filed an Affidavit-Complaint charging the petitioner before the
Ombudsman of serious misconduct, conduct unbecoming of a public official, abuse of authority, and violations
of the Revised Penal Code and of the Graft and Corrupt Practices Act.6 The private respondent stated in her
complaint that she is the President of the Association of Drug Testing Centers (Association) that conducts drug
testing and medical examination of applicants for drivers license. In this capacity, she went to the Land
Transportation Office (LTO) on May 17, 2002 to meet with representatives from the Department of
Transportation and Communication (DOTC) and to file a copy of the Associations request to lift the moratorium
imposed by the LTO on the accreditation of drug testing clinics. Before proceeding to the office of the LTO
Commissioner for these purposes, she passed by the office of the petitioner to conduct a follow up on the
status of her companys application for accreditation. While there, the petitioner -- without provocation or any
justifiable reason and in the presence of other LTO employees and visitors -- shouted at her in a very arrogant
and insulting manner, hurled invectives upon her person, and prevented her from entering the office of the LTO
Commissioner. The petitioner also accused the private respondent of causing intrigues against her at the
DOTC. To prove her allegations, the private respondent presented the affidavits of three witnesses.7

The Ombudsman furnished the petitioner a copy of the Complaint-Affidavit and required her to file her counter-
affidavit. In her Counter-Affidavit, the petitioner denied the private respondent's allegations and claimed that
she merely told the private respondent to bring her request to the LTO Assistant Secretary who has the
authority to act on the matter, not to the DOTC.8 The petitioner also claimed that the private respondent also
asked her to lift the moratorium and pressured her to favorably act on the private respondents application for
accreditation. To prove these claims, petitioner presented the affidavits of her two witnesses.9

The Ombudsman called for a preliminary conference that the parties attended. The petitioner manifested her
intent to submit the case for resolution. The Ombudsman then directed the parties to submit their respective
memoranda. Only the petitioner filed a Memorandum where she stressed that the complaint is not properly
substantiated for lack of supporting affidavits and other evidence.10

The Office of the Ombudsman

The Ombudsman rendered the November 4, 2002 Decision based on the pleadings and the submitted
affidavits. It found the petitioner administratively liable for discourtesy in the course of her official functions and
imposed on her the penalty of reprimand.

The Ombudsman ruled that the petitioner's verbal assault on the private respondent was sufficiently
established by the affidavits of the private respondents witnesses who had not been shown by evidence to
have any motive to falsely testify against petitioner. In contrast, the petitioners witnesses, as her officemates,
were likely to testify in her favor. Given that the incident happened at the LTO and that the petitioner had
authority to act on the private respondents application for accreditation, the Ombudsman also found that the
petitioner's ascendancy over the private respondent made the petitioners verbal assault more likely. The
Ombudsman concluded that such verbal assault might have been caused by the private respondents decision
to air the LTO moratorium issue (on accreditation for drug testing centers) before the DOTC; this decision also
negated the petitioners defense that the case was filed to exert pressure on her to act favorably on private
respondents application for accreditation.

The petitioner filed a Motion for Reconsideration arguing that she was deprived of due process because she
was not furnished copies of the affidavits of the private respondents witnesses.11 In the same motion, petitioner
questioned the Ombudsmans disregard of the evidence she had presented, and disagreed with the
Ombudsmans statement that she has ascendancy over the private respondent.

The Ombudsman responded to the petitioners motion for reconsideration by ordering that the petitioner be
furnished with copies of the affidavits of the private respondents witnesses. 12 The Ombudsmans order also
contained the "directive to file, within ten (10) days from receipt of this Order, such pleading which she may
deem fit under the circumstances."

Records show that the petitioner received copies of the private respondents witnesses affidavits but she did
not choose to controvert these affidavits or to file a supplement to her motion for reconsideration. She simply
maintained in her Manifestation that her receipt of the affidavits did not alter the fact the she was deprived of
due process nor cure the irregularity in the November 4, 2002 Decision.

Under these developments, the Ombudsman ruled that the petitioner was not denied due process. It also
maintained the findings and conclusions in its November 4, 2002 Decision, declaring them supported by
substantial evidence.13

The Court of Appeals

The petitioners chosen remedy, in light of the Ombudsman ruling, was to file a petition for certiorari (docketed
as CA-GR SP No. 77029) with the CA. In its Decision dated May 26, 2004, the CA dismissed the petition on
the ground that the petitioner used the wrong legal remedy and failed to exhaust administrative remedies
before the Ombudsman.14 The CA said:

" as held in Fabian v. Desierto, a party aggrieved by the decision of the Office of the Ombudsman may
appeal to this Court by way of a petition for review under Rule 43. As succinctly held by the Supreme Court:

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with regulatory philosophy adopted in appeals from quasi-judicial agencies in the
1997 Revised Rules of Civil Procedure, appeals from decision of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the CA under the provisions of Rule 43.

Even assuming, argumentatis, that public respondent committed grave abuse of discretion, such fact is not
sufficient to warrant the issuance of the extraordinary writ of certiorari, as was held in Union of Nestle Workers
Cagayan de Oro Factory vs. Nestle Philippines, Inc.:

x x x .For certiorari to prosper, it is not enough that the trial court committed grave abuse of discretion
amounting to lack or excess of jurisdiction, as alleged by petitioners. The requirement that there is no appeal
nor any plain, speedy and adequate remedy in the ordinary course of law must likewise be satisfied. x x x

Petitioner was given the opportunity by public respondent to rebut the affidavits submitted by private
respondent, in its Order dated January 17, 2003. Petitioner, therefore, had a speedy and adequate remedy, but
she failed to avail thereof for reasons only known to her.

xxx

Moreover, instead of filing a petition for review under Rule 43, she filed the present petition for certiorari under
Rule 65. In view of our above disquisition, We find no further reason to discuss the merits of the case.
Petitioner having resorted to the wrong remedy, the dismissal of the present petition is in order.15

After the CAs negative ruling on the motion for reconsideration, the petitioner filed the present petition for
review on certiorari with this Court, raising the following issues:

THE ISSUES

I. WHETHER OR NOT A PETITION FOR CERTIORARI UNDER RULE 65 IS THE PROPER AND ONLY
AVAILABLE REMEDY WHEN THE PENALTY IMPOSED IN AN ADMINISTRATIVE COMPLAINT WITH THE
OFFICE OF THE OMBUDSMAN IS CONSIDERED FINAL AND UNAPPEALABLE.

II. WHETHER OR NOT PETITIONER WAS DENIED OF (sic) THE CONSTITUTIONAL GUARANTEE TO DUE
PROCESS WHEN SHE WAS DEPRIVED OF HER RIGHT TO CONFRONT THE EVIDENCE SUBMITTED
AGAINST HER BEFORE THE DECISION OF THE OFFICE OF THE OMBUDSMAN WAS RENDERED.

On the first issue, the petitioner argued that the ruling in Fabian v. Desierto16 can only be applied when the
decision of the Ombudsman is appealable. The ruling in Fabian is not applicable to the Ombudsman rulings
under the express provisions of Section 27 of Republic Act (R.A.) No. 677017 and Section 7, Rule III of
Administrative Order (A.O.) No. 718 since the penalty of reprimand imposed is final and unappealable. The
appropriate remedy, under the circumstances, is not the appellate remedy provided by Rule 43 of the Rules of
Court but a petition for certiorari under Rule 65 of these Rules.

On the second issue, the petitioner maintained that she was denied due process because no competent
evidence was presented to prove the charge against her. While she was belatedly furnished copies of the
affidavits of the private respondents witnesses, this was done after the Ombudsman had rendered a decision.
She posited that her belated receipt of the affidavits and the subsequent proceedings before the Ombudsman
did not cure the irregularity of the November 4, 2002 Decision as she was not given the opportunity to refute
the private respondents evidence before the Ombudsmans decision was rendered. The petitioner advanced
the view that on this ground alone, she should be allowed to question the arbitrary exercise of the
Ombudsmans discretion.

The Ombudsmans Comment,19 filed through the Office of the Solicitor General, maintained that the proper
remedy to assail the November 4, 2002 Decision and February 12, 2003 Order was to file a petition for review
under Rule 43 as laid down in Fabian,20 and not the petition for certiorari that the petitioner filed. The
Ombudsman argues further that since no petition for review was filed within the prescribed period (as provided
under Section 4, Rule 43),21 the November 4, 2002 Decision and February 12, 2003 Order had become final
and executory. The Ombudsman maintained, too, that its decision holding the petitioner administratively liable
is supported by substantial evidence; the petitioners denial of the verbal assault cannot prevail over the
submitted positive testimony. The Ombudsman also asserted that the petitioner was not denied due process as
she was given the opportunity to be heard on the affidavits that were belatedly furnished her when she was
directed to "file any pleading as she may consider fit."

The private respondent shared the positions of the Ombudsman in her Comment.22 Both the Office of the
Solicitor General and the private respondent also asserted the doctrine that factual findings of administrative
agencies should be given great respect when supported by substantial evidence.

We initially denied the petition in our Resolution dated December 12, 2005 for the petitioners failure to comply
with our Resolutions dated March 30, 2005 and April 25, 2005. However, we reconsidered the denial in a
subsequent Resolution (dated February 27, 2006)23 and reinstated the petition on the petitioners motion for
reconsideration after she complied with our directives. We required the parties to submit their respective
memoranda where they reiterated the positions presented in their previous submissions.

THE COURTS RULING

We deny the Petition.

While we find that the Court of Appeals erred in its ruling on the appropriate mode of review the petitioner
should take, we also find that the appellate court effectively ruled on the due process issue raised the failure
to provide the petitioner the affidavits of witnesses - although its ruling was not directly expressed in due
process terms. The CAs finding that the petitioner failed to exhaust administrative remedies (when she failed
to act on the affidavits that were belatedly furnished her) effectively embodied a ruling on the due process issue
at the same time that it determined the propriety of the petition for certiorari that the CA assumed arguendo to
be the correct remedy.

Under this situation, the error in the appellate courts ruling relates to a technical matter the mode of review
that the petitioner correctly took but which the CA thought was erroneous. Despite this erroneous conclusion,
the CA nevertheless fully reviewed the petition and, assuming it arguendo to be the correct mode of review,
also ruled on its merits. Thus, while it erred on the mode of review aspect, it correctly ruled on the exhaustion
of administrative remedy issue and on the due process issue that the exhaustion issue implicitly carried. In
these lights, the present petition essentially has no merit so that its denial is in order.

The Mode of Review Issue

The case of Fabian v. Desierto24 arose from the doubt created in the application of Section 27 of R.A. No. 6770
(The Ombudsmans Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the
Ombudsman) on the availability of appeal before the Supreme Court to assail a decision or order of the
Ombudsman in administrative cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and Section 7,
Rule III of A.O. No. 7 and the other rules implementing the Act) insofar as it provided for appeal
by certiorari under Rule 45 from the decisions or orders of the Ombudsman in administrative cases. We held
that Section 27 of R.A. No. 6770 had the effect, not only of increasing the appellate jurisdiction of this Court
without its advice and concurrence in violation of Section 30, Article VI of the Constitution; it was also
inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a petition for review on certiorari
shall apply only to a review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court
of Tax Appeals, the Regional Trial Court, or other courts authorized by law."25 We pointedly said:

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in
the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the CA under the provisions of Rule 43.26

We restated this doctrine in several cases27 and further elaborated on the recourses from Ombudsman actions
in other cases we have decided since then. In Lapid v. CA, we explained that an appeal under Rule 43 to the
CA only applies to administrative cases where the right to appeal is granted under Section 27 of R.A. No.
6770.28 In Lopez v. CA29 and Herrera v. Bohol,30 we recognized that no appeal is allowed in administrative
cases where the penalty of public censure, reprimand, suspension of not more than one month, or a fine
equivalent to one month salary, is imposed. We pointed out that decisions of administrative agencies that are
declared by law to be final and unappealable are still subject to judicial review if they fail the test of
arbitrariness or upon proof of gross abuse of discretion;31 the complainants legal recourse is to file a petition
for certiorari under Rule 65 of the Rules of Court, applied as rules suppletory to the Rules of Procedure of the
Office of the Ombudsman.32 The use of this recourse should take into account the last paragraph of Section 4,
Rule 65 of the Rules of Court i.e., the petition shall be filed in and be cognizable only by the CA if it involves
the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or by the Rules.33

In the present case, the Ombudsmans decision and order imposing the penalty of reprimand on the petitioner
are final and unappealable. Thus, the petitioner availed of the correct remedy when she filed a petition for
certiorari before the CA to question the Ombudsmans decision to reprimand her.

The Due Process Issue

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust all the
administrative remedies available to her before the Ombudsman. This ruling is legally correct as exhaustion of
administrative remedies is a requisite for the filing of a petition for certiorari.34 Other than this legal significance,
however, the ruling necessarily carries the direct and immediate implication that the petitioner has been
granted the opportunity to be heard and has refused to avail of this opportunity; hence, she cannot claim denial
of due process. In the words of the CA ruling itself: "Petitioner was given the opportunity by public respondent
to rebut the affidavits submitted by private respondent. . . and had a speedy and adequate administrative
remedy but she failed to avail thereof for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct
concepts, exhaustion of administrative remedies and due process embody linked and related principles. The
"exhaustion" principle applies when the ruling court or tribunal is not given the opportunity to re-examine its
findings and conclusions because of an available opportunity that a party seeking recourse against the court or
the tribunals ruling omitted to take.35 Under the concept of "due process," on the other hand, a violation occurs
when a court or tribunal rules against a party without giving him or her the opportunity to be heard.36Thus, the
exhaustion principle is based on the perspective of the ruling court or tribunal, while due process is considered
from the point of view of the litigating party against whom a ruling was made. The commonality they share is in
the same "opportunity" that underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioners counter-statement of facts was denied the Ombudsman; hence, the
petitioner is barred from seeking recourse at the CA because the ground she would invoke was not considered
at all at the Ombudsman level. At the same time, the petitioner who had the same opportunity to rebut the
belatedly-furnished affidavits of the private respondents witnesses was not denied and cannot now claim
denial of due process because she did not take advantage of the opportunity opened to her at the Ombudsman
level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds (i.e., for the
private respondents failure to furnish her copies of the affidavits of witnesses) and on questions relating to the
appreciation of the evidence on record.37 The Ombudsman acted on this motion by issuing its Order of January
17, 2003 belatedly furnishing her with copies of the private respondents witnesses, together with the "directive
to file, within ten (10) days from receipt of this Order, such pleading which she may deem fit under the
circumstances."38

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January 2003
supplying her with the affidavits of the complainant does not cure the 04 November 2002 order," and on this
basis prayed that the Ombudsmans decision "be reconsidered and the complaint dismissed for lack of merit."39

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated 27
January 2003 and prayed for the denial of the petitioners motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioners motion for reconsideration after finding
no basis to alter or modify its ruling.40 Significantly, the Ombudsman fully discussed in this Order the due
process significance of the petitioners failure to adequately respond to the belatedly-furnished affidavits. The
Ombudsman said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits, which she
claims she has not received. Furthermore, the respondent has been given the opportunity to present her side
relative thereto, however, she chose not to submit countervailing evidence or argument. The respondent,
therefore (sic), cannot claim denial of due process for purposes of assailing the Decision issued in the present
case. On this score, the Supreme Court held in the case of People v. Acot, 232 SCRA 406, that "a party cannot
feign denial of due process where he had the opportunity to present his side". This becomes all the more
important since, as correctly pointed out by the complainant, the decision issued in the present case is deemed
final and unappealable pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative
Order No. 07. Despite the clear provisions of the law and the rules, the respondent herein was given the
opportunity not normally accorded, to present her side, but she opted not to do so which is evidently fatal to her
cause." [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioners cause is a lost one, not only for
her failure to exhaust her available administrative remedy, but also on due process grounds. The law can no
longer help one who had been given ample opportunity to be heard but who did not take full advantage of the
proffered chance.

WHEREFORE, premises considered, we hereby DENY the petition. This denial has the effect of confirming the
finality of the Decision of the Ombudsman dated November 4, 2002 and of its Order dated February 12, 2003.

SO ORDERED.

G.R. No. 117565 November 18, 1997

ARSENIO P. LUMIQUED (deceased), Regional Director, DAR CAR, Represented by his Heirs,
Francisca A. Lumiqued, May A. Lumiqued, Arlene A. Lumiqued and Richard A.
Lumiqued, petitioners,
vs.
Honorable APOLONIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL
Members of Investigating Committee, created by DOJ Order No. 145 on May 30, 1992; HON.
FRANKLIN M. DRILON, SECRETARY OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF Presidential
Legal Adviser/Counsel; and HON. LEONARDO A. QUISUMBING, Senior Deputy Executive
Secretary of the Office of the President, and JEANNETTE OBAR-ZAMUDIO, Private
Respondent, respondents.

ROMERO, J.:

Does the due process clause encompass the right to be assisted by counsel during an administrative
inquiry?

Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian Reform Cordillera
Autonomous Region (DAR-CAR) until President Fidel V. Ramos dismissed him from that position
pursuant to Administrative Order No. 52 dated May 12, 1993. In view of Lumiqued's death on May 19,
1994, his heirs instituted this petition for certiorari and mandamus, questioning such order.

The dismissal was the aftermath of three complaints filed by DAR-CAR Regional Cashier and private
respondent Jeannette Obar-Zamudio with the Board of Discipline of the DAR. The first affidavit-complaint
dated November 16, 1989, 1 charged Lumiqued with malversation through falsification of official
documents. From May to September 1989, Lumiqued allegedly committed at least 93 counts of
falsification by padding gasoline receipts. He even submitted a vulcanizing shop receipt worth P550.00 for
gasoline bought from the shop, and another receipt for P660.00 for a single vulcanizing job. With the use
of falsified receipts, Lumiqued claimed and was reimbursed the sum of P44,172.46. Private respondent
added that Lumiqued seldom made field trips and preferred to stay in the office, making it impossible for
him to consume the nearly 120 liters of gasoline he claimed everyday.

In her second affidavit-complaint dated November 22, 1989, 2 private respondent accused Lumiqued with
violation of Commission on Audit (COA) rules and regulations, alleging that during the months of April,
May, July, August, September and October, 1989, he made unliquidated cash advances in the total
amount of P116,000.00. Lumiqued purportedly defrauded the government "by deliberately concealing his
unliquidated cash advances through the falsification of accounting entries in order not to reflect on 'Cash
advances of other officials' under code 8-70-600 of accounting rules."

The third affidavit-complaint dated December 15, 1989, 3 charged Lumiqued with oppression and
harassment. According to private respondent, her two previous complaints prompted Lumiqued to retaliate
by relieving her from her post as Regional Cashier without just cause.

The three affidavit-complaints were referred in due course to the Department of Justice (DOJ) for
appropriate action. On May 20, 1992, Acting Justice Secretary Eduardo G. Montenegro issued
Department Order No. 145 creating a committee to investigate the complaints against Lumiqued. The
order appointed Regional State Prosecutor Apolinario Exevea as committee chairman with City
Prosecutor Erdolfo Balajadia and Provincial Prosecutor Felix Cabading as members. They were
mandated to conduct an investigation within thirty days from receipt of the order, and to submit their report
and recommendation within fifteen days from its conclusion.

The investigating committee accordingly issued a subpoena directing Lumiqued to submit his counter-
affidavit on or before June 17, 1992. Lumiqued, however, filed instead an urgent motion to defer
submission of his counter-affidavit pending actual receipt of two of private respondent's complaints. The
committee granted the motion and gave him a five-day extension.

In his counter-affidavit dated June 23, 1992, 4 Lumiqued alleged, inter alia, that the cases were filed
against him to extort money from innocent public servants like him, and were initiated by private
respondent in connivance with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He
claimed that the apparent weakness of the charge was bolstered by private respondent's execution of an
affidavit of desistance. 5

Lumiqued admitted that his average daily gasoline consumption was 108.45 liters. He submitted,
however, that such consumption was warranted as it was the aggregate consumption of the five service
vehicles issued under his name and intended for the use of the Office of the Regional Director of the DAR.
He added that the receipts which were issued beyond his region were made in the course of his travels to
Ifugao Province, the DAR Central Office in Diliman, Quezon City, and Laguna, where he attended a
seminar. Because these receipts were merely turned over to him by drivers for reimbursement, it was not
his obligation but that of auditors and accountants to determine whether they were falsified. He affixed his
signature on the receipts only to signify that the same were validly issued by the establishments
concerned in order that official transactions of the DAR-CAR could be carried out.

Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said that he and his companions
were cruising along Santa Fe, Nueva Vizcaya on their way to Ifugao when their service vehicle ran out of
gas. Since it was almost midnight, they sought the help of the owner of a vulcanizing shop who readily
furnished them with the gasoline they needed. The vulcanizing shop issued its own receipt so that they
could reimburse the cost of the gasoline. Domingo Lucero, the owner of said vulcanizing shop,
corroborated this explanation in an affidavit dated June 25, 1990. 6 With respect to the accusation that he
sought reimbursement in the amount of P660.00 for one vulcanizing job, Lumiqued submitted that the
amount was actually only P6.60. Any error committed in posting the amount in the books of the Regional
Office was not his personal error or accountability.

To refute private respondent's allegation that he violated COA rules and regulations in incurring
unliquidated cash advances in the amount of P116,000.00, Lumiqued presented a certification 7 of DAR-
CAR Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record as
of December 31, 1989.
In disputing the charges of oppression and harassment against him, Lumiqued contended that private
respondent was not terminated from the service but was merely relieved of her duties due to her
prolonged absences. While admitting that private respondent filed the required applications for leave of
absence, Lumiqued claimed that the exigency of the service necessitated disapproval of her application
for leave of absence. He allegedly rejected her second application for leave of absence in view of her
failure to file the same immediately with the head office or upon her return to work. He also asserted that
no medical certificate supported her application for leave of absence.

In the same counter-affidavit, Lumiqued also claimed that private respondent was corrupt and dishonest
because a COA examination revealed that her cash accountabilities from June 22 to November 23, 1989,
were short by P30,406.87. Although private respondent immediately returned the amount on January 18,
1990, the day following the completion of the cash examination, Lumiqued asserted that she should be
relieved from her duties and assigned to jobs that would not require handling of cash and money matters.

Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not
assisted by counsel. On the second hearing date, he moved for its resetting to July 17, 1992, to enable
him to employ the services of counsel. The committee granted the motion, but neither Lumiqued nor his
counsel appeared on the date he himself had chosen, so the committee deemed the case submitted for
resolution.

On August 12, 1992, Lumiqued filed an urgent motion for additional hearing, 8 alleging that he suffered a
stroke on July 10, 1992. The motion was forwarded to the Office of the State Prosecutor apparently
because
the investigation had already been terminated. In an order dated September 7, 1992, 9 State Prosecutor
Zoila C. Montero denied the motion, viz:

The medical certificate given show(s) that respondent was discharged from the Sacred
Heart Hospital on July 17, 1992, the date of the hearing, which date was upon the request
of respondent (Lumiqued). The records do not disclose that respondent advised the
Investigating committee of his confinement and inability to attend despite his discharge,
either by himself or thru counsel. The records likewise do not show that efforts were
exerted to notify the Committee of respondent's condition on any reasonable date after July
17, 1992. It is herein noted that as early as June 23, 1992, respondent was already being
assisted by counsel.

Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency,

completeness and thoroughness of the counter-affidavit together with the documentary
evidence annexed thereto, such that a judicious determination of the case based on the
pleadings submitted is already possible.

Moreover, considering that the complaint-affidavit was filed as far back as November 16,
1989 yet, justice can not be delayed much longer.

Following the conclusion of the hearings, the investigating committee rendered a report dated July 31,
1992, 10 finding Lumiqued liable for all the charges against him. It made the following findings:

After a thorough evaluation of the evidences (sic) submitted by the parties, this committee
finds the evidence submitted by the complainant sufficient to establish the guilt of the
respondent for Gross Dishonesty and Grave Misconduct.

That most of the gasoline receipts used by the respondent in claiming for the
reimbursement of his gasoline expenses were falsified is clearly established by the 15
Certified Xerox Copies of the duplicate receipts (Annexes G-1 to G-15) and the
certifications issued by the different gasoline stations where the respondent purchased
gasoline. Annexes "G-1" to "G-15" show that the actual average purchase made by the
respondent is about 8.46 liters only at a purchase price of P50.00, in contrast to the
receipts used by the respondent which reflects an average of 108.45 liters at a purchase
price of P550.00. Here, the greed of the respondent is made manifest by his act of claiming
reimbursements of more than 10 times the value of what he actually spends. While only 15
of the gasoline receipts were ascertained to have been falsified, the motive, the pattern and
 the scheme employed by the respondent in defrauding the government has, nevertheless,
been established.

That the gasoline receipts have been falsified was not rebutted by the respondent. In fact,
he had in effect admitted that he had been claiming for the payment of an average
consumption of 108.45 liters/day by justifying that this was being used by the 4 vehicles
issued to his office. Besides he also admitted having signed the receipts.

Respondent's act in defrauding the government of a considerable sum of money by

falsifying receipts constitutes not only Dishonesty of a high degree but also a criminal
offense for Malversation through Falsification of Official Documents.

This committee likewise finds that the respondent have (sic) unliquidated cash advances in
the year 1989 which is in violation of established office and auditing rules. His cash
advances totaling to about P116,000.00 were properly documented. The requests for
obligation of allotments and the vouchers covering the amounts were all signed by him.
The mere certification issued by the Administrative Officer of the DAR-CAR cannot
therefore rebut these concrete evidences (sic).

On the third complaint, this committee likewise believes that the respondent's act in
relieving the complainant of her functions as a Regional Cashier on December 1, 1989 was
an act of harassment. It is noted that this was done barely two weeks after the complainant
filed charges against her (sic). The recommendation of Jose G. Medina of the Commission
on Audit came only on May 11, 1990 or almost six months after the respondent's order
relieving the complainant was issued. His act in harassing a subordinate employee in
retaliation to a complaint she filed constitute(s) Gross Misconduct on the part of the
respondent who is a head of office.

The affidavits of Joseph In-uyay and Josefina Guting are of no help to the respondent. In
fact, this only show(s) that he is capable of giving bribes if only to have the cases against
him dismissed. He could not have given a certain Benigno Aquino III the sum of
P10,000.00 for any other purpose.

Accordingly, the investigating committee recommended Lumiqued's dismissal or removal from office,
without prejudice to the filing of the appropriate criminal charges against him.

Acting on the report and recommendation, former Justice Secretary Franklin M. Drilon adopted the same
in his Memorandum to President Fidel V. Ramos dated October 22, 1992. He added that the filing of the
affidavit of desistance 11 would not prevent the issuance of a resolution on the matter considering that
what was at stake was not only "the violation of complainant's (herein private respondent's) personal
rights" but also "the competence and fitness of the respondent (Lumiqued) to remain in public office." He
opined that, in fact, the evidence on record could call for "a punitive action against the respondent on the
initiative of the DAR."

On December 17, 1992, Lumiqued filed a motion for reconsideration of "the findings of the Committee"
with the DOJ. 12Undersecretary Ramon S. Esguerra indorsed the motion to the investigating
committee. 13 In a letter dated April 1, 1993, the three-member investigating committee informed
Undersecretary Esguerra that the committee "had no more authority to act on the same (motion for
reconsideration) considering that the matter has already been forwarded to the Office of the President"
and that their authority under Department Order No. 145 ceased when they transmitted their report to the
DOJ. 14 Concurring with this view, Undersecretary Esguerra informed Lumiqued that the investigating
committee could no longer act on his motion for reconsideration. He added that the motion was also
prematurely filed because the Office of the President (OP) had yet to act on Secretary Drilon's
recommendation. 15

On May 12, 1993, President Fidel V. Ramos himself issued Administrative Order No. 52 (A.O. No.
52), 16 finding Lumiqued administratively liable for dishonesty in the alteration of fifteen gasoline receipts,
and dismissing him from the service, with forfeiture of his retirement and other benefits. Thus:

That the receipts were merely turned over to him by his drivers and that the auditor and
accountant of the DAR-CAR should be the ones to be held liable is untenable. The receipts
 in question were signed by respondent for the purpose of attesting that those receipts were
validly issued by the commercial establishments and were properly disbursed and used in
the official business for which it was intended.

This Office is not about to shift the blame for all these to the drivers employed by the DAR-
CAR as respondent would want us to do.

The OP, however, found that the charges of oppression and harassment, as well as that of incurring
unliquidated cash advances, were not satisfactorily established.

In a "petition for appeal" 17 addressed to President Ramos, Lumiqued prayed that A.O. No. 52 be
reconsidered and that he be reinstated to his former position "with all the benefits accorded to him by law
and existing rules and regulations." This petition was basically premised on the affidavit dated May 27,
1993, of a certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to having
authored the falsification of gasoline receipts and attested to petitioner Lumiqued's being an "honest man"
who had no "premonition" that the receipts he (Dwight) turned over to him were "altered." 18

Treating the "petition for appeal" as a motion for reconsideration of A.O. No. 52, the OP, through Senior
Deputy Executive Secretary Leonardo A. Quisumbing, denied the same on August 31, 1993.

Undaunted, Lumiqued filed a second motion for reconsideration, alleging, among other things, that he was
denied the constitutional right to counsel during the hearing. 19 On May 19, 1994, 20 however, before his
motion could be resolved, Lumiqued died. On September 28, 1994, 21 Secretary Quisumbing denied the
second motion for reconsideration for lack of merit.

Hence, the instant petition for certiorari and mandamus praying for the reversal of the Report and
Recommendation of the Investigating Committee, the October 22, 1992, Memorandum of then Justice
Secretary Drilon, A.O. No. 52 issued by President Ramos, and the orders of Secretary Quisumbing. In a
nutshell, it prays for the "payment of retirement benefits and other benefits accorded to deceased Arsenio
Lumiqued by law, payable to his heirs; and the backwages from the period he was dismissed from service
up to the time of his death on May 19, 1994." 22

Petitioners fault the investigating committee for its failure to inform Lumiqued of his right to counsel during
the hearing. They maintain that his right to counsel could not be waived unless the waiver was in writing
and in the presence of counsel. They assert that the committee should have suspended the hearing and
granted Lumiqued a reasonable time within which to secure a counsel of his own. If suspension was not
possible, the committee should have appointed a counsel de oficio to assist him.

These arguments are untenable and misplaced. The right to counsel, which cannot be waived unless the
waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during
custodial investigation. 23 It is not an absolute right and may, thus, be invoked or rejected in a criminal
proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke
the right of an accused in criminal proceedings to have competent and independent counsel of his own
choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation
conducted by the committee created by Department Order No. 145 was for the purpose of determining if
he could be held administratively liable under the law for the complaints filed against him. The order
issued by Acting Secretary of Justice Montenegro states thus:

In the interest of the public service and pursuant to the provisions of existing laws, a
Committee to conduct the formal investigation of the administrative complaint for
oppression, dishonesty, disgraceful and immoral conduct, being notoriously undesirable
and conduct prejudicial to the best interest of the service against Mr. ARSENIO P.
LUMIQUED, Regional Director, Department of Agrarian Reform, Cordillera Autonomous
Region, is hereby created . . . 24

As such, the hearing conducted by the investigating committee was not part of a criminal
prosecution. This was even made more pronounced when, after finding Lumiqued administratively
liable, it hinted at the filing of a criminal case for malversation through falsification of public
documents in its report and recommendation.
Petitioners' misconception on the nature of the investigation 25 conducted against Lumiqued appears to
have been engendered by the fact that the DOJ conducted it. While it is true that under the Administrative
Code of 1987, the DOJ shall "administer the criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration
of the correctional system, 26 conducting criminal investigations is not its sole function. By its power to
"perform such other functions as may be provided by law," 27 prosecutors may be called upon to conduct
administrative investigations. Accordingly, the investigating committee created by Department Order No.
145 was duty-bound to conduct the administrative investigation in accordance with the rules therefor.

While investigations conducted by an administrative body may at times be akin to a criminal proceeding,
the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted
by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself,
and no duty rests on such a body to furnish the person being investigated with counsel. 28 In an
administrative proceeding such as the one that transpired below, a respondent (such as Lumiqued) has
the option of engaging the services of counsel or not. This is clear from the provisions of Section 32,
Article VII of Republic Act No. 2260 29 (otherwise known as the Civil Service Act) and Section 39,
paragraph 2, Rule XIV (on Discipline) of the Omnibus Rules Implementing Book V of Executive Order No.
292 30 (otherwise known as the Administrative Code of 1987). Excerpts from the transcript of stenographic
notes of the hearings attended by Lumiqued 31clearly show that he was confident of his capacity and so
opted to represent himself . Thus, the right to counsel is not imperative in administrative investigations
because such inquiries are conducted merely to determine whether there are facts that merit disciplinary
measures against erring public officers and employees, with the purpose of maintaining the dignity of
government service.

Furthermore, petitioners' reliance on Resolution No. 94-0521 of the Civil Service Commission on the
Uniform Procedure in the Conduct of Administrative Investigation stating that a respondent in an
administrative complaint must be "informed of his right to the assistance of a counsel of his choice," 32 is
inappropriate. In the first place, this resolution is applicable only to cases brought before the Civil Service
Commission. 33 Secondly, said resolution, which is dated January 25, 1994, took effect fifteen days
following its publication in a newspaper of general circulation, 34 much later than the July 1992 hearings of
the investigating committee created by Department Order No. 145. Thirdly, the same committee was not
remiss in the matter of reminding Lumiqued of his right to counsel. Thus, at the July 3, 1992, hearing,
Lumiqued was repeatedly appraised of his option to secure the services of counsel:

RSP EXEVEA:

This is an administrative case against Director Lumiqued. Director Lumiqued

is present. The complainant is present, Janet Obar-Zamudio. Complainant
has just been furnished with a copy of the counter-affidavit of the
respondent. Do you have a counsel, Director?

DIR. LUMIQUED:

I did not bring anybody, Sir, because when I went to see him, he told me,
Sir, that he has already set a hearing, morning and afternoon today.

RSP EXEVEA:

So, we will proceed with the hearing even without your counsel? You are
willing to proceed with the hearing even without your counsel?

DIR. LUMIQUED:

Yes, I am confident. . .

CP BALAJADIA:

You are confident that you will be able to represent yourself?

DIR. LUMIQUED:
 That is my concern. 35 (Emphasis supplied)

In the course of private respondent's damaging testimony, the investigating committee once again
reminded Lumiqued of his need for a counsel. Thus:

CP BALAJADIA:

Q. (To Director Lumiqued) You really wish to go through with this even
without your counsel?

DIRECTOR LUMIQUED:

A. I think so, Sir.

CP BALAJADIA:

Let us make it of record that we have been warning you to proceed with the
assistance of counsel but you said that you can take care of yourself so we
have no other alternative but to proceed. 36 (Emphasis supplied).

Thereafter, the following colloquies transpired:

CP BALAJADIA:

We will suspend in the meantime that we are waiting for the supplemental
affidavit you are going to present to us. Do you have any request from the
panel of investigators, Director Lumiqued?

DIRECTOR LUMIQUED:

I was not able to bring a lawyer since the lawyer I requested to assist me
and was the one who prepared my counter-affidavit is already engaged for a
hearing and according to him he is engaged for the whole month of July.

RSP EXEVEA:

We cannot wait . . .

CP BALAJADIA:

Why don't you engage the services of another counsel. The charges against
you are quite serious. We are not saying you are guilty already. We are just
apprehensive that you will go through this investigation without a counsel.
We would like you to be protected legally in the course of this investigation.
Why don't you get the services of another counsel. There are plenty here in
Baguio . . .

DIRECTOR LUMIQUED:

I will try to see, Sir . . .

CP BALAJADIA:

Please select your date now, we are only given one month to finish the
investigation, Director Lumiqued.

RSP EXEVEA:

We will not entertain any postponement. With or without counsel, we will

proceed.
 CP BALAJADIA:

Madam Witness, will you please submit the document which we asked for
and Director Lumiqued, if you have other witnesses, please bring them but
reduce their testimonies in affidavit form so that we can expedite with the
proceedings. 37

At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the services of counsel.
Pertinent excerpts from said hearing follow:

FISCAL BALAJADIA:

I notice also Mr. Chairman that the respondent is not being represented by a
counsel. The last time he was asked to invite his lawyer in this investigation.
May we know if he has a lawyer to represent him in this investigation?

DIR. LUMIQUED:

There is none Sir because when I went to my lawyer, he told me that he had
set a case also at 9:30 in the other court and he told me if there is a
possibility of having this case postponed anytime next week, probably
Wednesday so we will have good time (sic) of presenting the affidavit.

FISCAL BALAJADIA:

Are you moving for a postponement Director? May I throw this to the panel.
The charges in this case are quite serious and he should be given a chance
to the assistance of a counsel/lawyer.

RSP EXEVEA:

And is (sic) appearing that the supplemental-affidavit has been furnished

him only now and this has several documents attached to it so I think we
could grant him one last postponement considering that he has already
asked for an extension.

DIR. LUMIQUED:

38
Furthermore Sir, I am now being bothered by my heart ailment.

The hearing was reset to July 17, 1992, the date when Lumiqued was released from the hospital. Prior to
said date, however, Lumiqued did not inform the committee of his confinement. Consequently because
the hearing could not push through on said date, and Lumiqued had already submitted his counter-
affidavit, the committee decided to wind up the proceedings. This did not mean, however, that Lumiqued
was short-changed in his right to due process.

Lumiqued, a Regional Director of a major department in the executive branch of the government,
graduated from the University of the Philippines (Los Baos) with the degree of Bachelor of Science major
in Agriculture, was a recipient of various scholarships and grants, and underwent training seminars both
here and abroad. 39 Hence, he could have defended himself if need be, without the help of counsel, if truth
were on his side. This, apparently, was the thought he entertained during the hearings he was able to
attend. In his statement, "That is my concern," one could detect that it had been uttered testily, if not
exasperatedly, because of the doubt or skepticism implicit in the question, "You are confident that you will
be able to represent yourself?" despite his having positively asserted earlier, "Yes, I am confident." He
was obviously convinced that he could ably represent himself. Beyond repeatedly reminding him that he
could avail himself of counsel and as often receiving the reply that he is confident of his ability to defend
himself, the investigating committee could not do more. One can lead a horse to water but cannot make
him drink.

The right to counsel is not indispensable to due process unless required by the Constitution or the law.
In Nera v. Auditor General, 40 the Court said:
 . . . There is nothing in the Constitution that says that a party in a non-criminal proceeding
is entitled to be represented by counsel and that, without such representation, he shall not
be bound by such proceedings. The assistance of lawyers; while desirable, is not
indispensable. The legal profession was not engrafted in the due process clause such that
without the participation of its members, the safeguard is deemed ignored or violated. The
ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer
at his side.

In administrative proceedings, the essence of due process is simply the opportunity to explain one's side.
One may be heard, not solely by verbal presentation but also, and perhaps even much more creditably as
it is more practicable than oral arguments, through pleadings. 41 An actual hearing is not always an
indispensable aspect of due process. 42 As long as a party was given the opportunity to defend his
interests in due course; he cannot be said to have been denied due process of law, for this opportunity to
be heard is the very essence of due process. 43 Moreover, this constitutional mandate is deemed satisfied
if a person is granted an opportunity to seek reconsideration of the action or ruling complained
of. 44 Lumiqued's appeal and his subsequent filing of motions for reconsideration cured whatever
irregularity attended the proceedings conducted by the committee. 45

The constitutional provision on due process safeguards life, liberty and property. 46 In the early case
of Cornejo v. Gabriel and Provincial Board of
Rizal 47 the Court held that a public office is not property within the sense of the constitutional guarantee of
due process of law for it is a public trust or agency. This jurisprudential pronouncement has been
enshrined in the 1987 Constitution under Article XI, Section 1, on accountability of public officers, as
follows:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.

When the dispute concerns one's constitutional right to security of tenure, however, public office is
deemed analogous to property in a limited sense; hence, the right to due process could rightfully be
invoked. Nonetheless, the right to security of tenure is not absolute. Of equal weight is the countervailing
mandate of the Constitution that all public officers and employees must serve with responsibility, integrity,
loyalty and efficiency. 48 In this case, it has been clearly shown that Lumiqued did not live up to this
constitutional precept.

The committee's findings pinning culpability for the charges of dishonesty and grave misconduct upon
Lumiqued were not, as shown above, fraught with procedural mischief. Its conclusions were founded on
the evidence presented and evaluated as facts. Well-settled in our jurisdiction is the doctrine that findings
of fact of administrative agencies must be respected as long as they are supported by substantial
evidence, even if such evidence is not overwhelming or
preponderant. 49 The quantum of proof necessary for a finding of guilt in administrative cases is only
substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. 50

Consequently, the adoption by Secretary Drilon and the OP of the committee's recommendation of
dismissal may not in any way be deemed tainted with arbitrariness amounting to grave abuse of
discretion. Government officials are presumed to perform their functions with regularity. Strong evidence is
not necessary to rebut that presumption, 51 which petitioners have not successfully disputed in the instant
case.

Dishonesty is a grave offense penalized by dismissal under Section 23 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987. Under Section 9 of the same Rule, the penalty
of dismissal carries with it "cancellation of eligibility, forfeiture of leave credits and retirement benefits, and
the disqualification for reemployment in the government service." The instant petition, which is aimed
primarily at the "payment of retirement benefits and other benefits," plus back wages from the time of
Lumiqued's dismissal until his demise, must, therefore, fail.

WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED and Administrative
Order no. 52 of the Office of the President is AFFIRMED. Costs against petitioners.