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[G.R. No. 153660. June 10, 2003 BELLOSILLO
- Petition for Review on Certiorari assailing the Decision of the Court of Appeals - Affirmed with modification the decision of the NLRC 62 Employees of Coke and its officers, Lipercon, People’s Specialist, and Interim Services, Inc., filed a complaint against respondents for unfair labor practice through illegal dismissal, violation of their security of tenure and the perpetuation of the “Cabo System.” They thus prayed for reinstatement with full back wages, and the declaration of their regular employment status. For failure to prosecute (failed to attend the mandatory conferences or submit affidavits) 52 claims were dismissed. Thereafter, Labor Arbiter Jose De Vera conducted clarificatory hearings to from the 10 remaining complainants (petitioners) They averred that in their duties as route helpers, bottle segregators; they were employees of Coke. They further maintained that when respondent company replaced them and prevented them from entering the company premises, they were deemed to have been illegally dismissed. In lieu of a position paper, Coke filed a motion to dismiss complaint there being no employeremployee relationship between them; and that SERVICE grps were bona fide independent contractors = employers of the complainants. As to its corporate officers, it insisted it acted in its official capacity in performing its duty. L.A Jose De Vera rendered a decision, ordered Coke to reinstate complainants, with all the rights, due regular employees, and pay full back wages. This ruling was supported by the testimonies of the complainants as more credible, sufficiently supplied every detail of their employment, in contrast with Coke’s mere negative declarations. On appeal, the NLRC affirmed. NLRC denied Coke’s MFR. CA affirmed employer-employee relationship, but agreed with Coke that some affidavits should not
have been given probative value for their failure to affirm the contents thereof and to undergo crossexamination. Thus, CA dismissed their complaints for lack of sufficient evidence. In the same Decision however, Ladica, Queling and Nieto were declared regular employees as they underwent crossexamination. Issue: Whether the Rules of Court should not be strictly applied in this case specifically for cross-ex because the NLRC has its own rules of procedure Rabago v. NLRC: “the argument that the affidavit is hearsay because the affiants were not presented for cross-examination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only.” Rase v. NLRC: To require otherwise would be to negate the rationale and purpose of the summary nature of the proceedings mandated by the Rules and to make mandatory the application of the technical rules of evidence. To reiterate, administrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only stringent application, i.e., by analogy or in a suppletory character and effect. Under the Rules of the Commission, the Labor Arbiter is given the discretion to determine the necessity of a formal trial or hearing. Hence, trial-type hearings are not even required as the cases may be decided based on verified position papers, with supporting documents and their affidavits.
1st LEPANTO CERAMICS v CA & Mariwasa G.R. No. 110571 March 10, 1994, Nocon Certiorari and prohibition, prel. Inj, Board of Investments (BOI) in Case No. 92-005 granted Lepanto’s application to amend its cert of registration by changing the scope of its registered product from "glazed floor tiles" to "ceramic tiles." Eventually, Mariwasa opposed thru MFR; failed, it filed a petition for review with CA Acting on the petition, CA required BOI and Lepanto to comment on Mariwasa's petition and to show cause why no injunction should issue. CA issued TRO to BOI from implementing its decision. It lapsed without respondent court issuing any preliminary injunction. Lepanto filed "Motion to Dismiss Petition and to Lift Restraining Order" for lack of jurisdiction, the same being exclusively vested with SC: Omnibus Investments Code of 1987. CA denied Lepanto’s Motion to Dismiss; given an inextendible 10 day period to file its comment. Lepanto decided not to MFR since issue essentially legal in nature. Immediately filed for certiorari and prohibition before SC Lepanto posits that CA acted with no or excess jurisdiction to entertain Mariwasa’s appeal as decision is final; that the appellate jurisdiction cannot be amended or superseded by Circular 1-91; that Mariwasa has lost it right to appeal in this case.
Petitioner argues that the Judiciary Reorganization Act of 1980 or Batas Pambansa Bilang 129 and Circular 191, "Prescribing the Rules Governing Appeals to CA from a Decision of the Court of Tax Appeals and QuasiJudicial Agencies" cannot be the basis of Mariwasa's appeal because the procedure for appeal laid down therein runs contrary to Article 82 of E.O. 226, which provides that appeals from decisions or orders of the BOI shall be filed directly with SC On the other hand, Mariwasa maintains that whatever "obvious inconsistency" or "irreconcilable repugnancy" there may have been between B.P. 129 and Article 82 of E.O. 226 on the question of venue for appeal has already
been resolved by Circular 1-91 of the Supreme Court, which was promulgated on February 27, 1991 or four (4) years after E.O. 226 was enacted. Clearly evident in the aforequoted provision of B.P. 129 is the laudable objective of providing a uniform procedure of appeal from decisions of all quasi-judicial agencies for the benefit of the bench and the bar. Equally laudable is the twin objective of B.P. 129 of unclogging the docket of this Court to enable it to attend to more important tasks DBP vs. CA: this Court noted that B.P. 129 did not deal only with "changes in the rules on procedures". CA was not only reorganized, but its jurisdiction and powers were also broadened : (1) extending it so as to include the writ of quo warranto, and also (2) empowering it to issue all said extraordinary writs "whether or not in aid of its appellate jurisdiction." Its appellate jurisdiction was also extended to cover not only final judgments of RTC, but also those of Q-J, except those falling within the appellate jurisdiction of SC Contrary to petitioner's contention, although a circular is not strictly a statute or law, it has, however, the force and effect of law according to settled jurisprudence. The argument that Article 82 of E.O. 226 cannot be validly repealed by Circular 1-91 because the former grants a substantive right under the constitution, is not entirely defensible. Indeed, the question of where and in what manner appeals from decisions of the BOI should be brought pertains only to procedure or the method of enforcing the substantive right to appeal granted by E.O. 226. In other words, the right to appeal from decisions or final orders of the BOI under E.O. 226 remains and continues to be respected. Circular 1-91 simply transferred the venue of appeals from decisions of this agency to respondent Court of Appeals and provided a different period of appeal, i.e., fifteen (15) days from notice. It did not make an incursion into the substantive right to appeal. Clearly, Circular 1-91 effectively repealed or superseded Article 82 of E.O. 226 insofar as the manner and method of enforcing the right to appeal from decisions of the BOI are concerned. Appeals from decisions of the BOI, which by statute was previously allowed to be filed directly with the Supreme Court, should now be brought to the Court of Appeals.
ANITA VILLA vs. MANUEL LAZARO G.R. No. 69871 August 24, 1990 NARVASA, J.: On January 1980, Anita Villa was granted a building permit to build a funeral parlor at Santiago Boulevard in Gen. Santos City. Permit issued by City Engineer that "project was in consonance the Land Use Plan and Zoning Ordinance" With financing from DBP, Villa commenced building. In October, as it was nearing completion, a suit for injunction was brought by Dr. Jesus Veneracion, the owner of St. Elizabeth Hospital, standing about 130m from the funeral parlor. The complaint sought its perpetual enjoinment for being allegedly violative of the Zoning Ordinance. A status quo order was issued. After appropriate proceedings and trial, judgment DISMISSED Veneracion's complaint as well Villa’s counterclaim CFI found that there was a falsified Zoning Ordinance, with a provision re: funeral parlors, submitted to and ratified by the Ministry of Human Settlements, but that ordinance had never been passed by the Sangguniang Panlungsod and that the genuine Zoning Ordinance of General Santos City contained no prohibition to such parlors' "distance from hospitals. Villa then resumed construction of her building and completed it. Veneracion did not appeal from this adverse judgment which became final. Instead, he brought it up with the Human Settlements Regulatory Commission. The complaint is substantially similar with that filed at CFI and dismissed. Furthermore, neither he nor the Commission, ever made known this second complaint to Villa until much, much later, after the respondent Commission had rendered several adverse rulings to her. 2 months after the rendition of the judgment against Veneracion, Villa received a telegram dated from Commissioner Raymundo R. Dizon of HSRC Villa replied same day to Dizon: the certification of Josefina E. Alaba HS officer, and certification of Manuel O. Sales, City Planning and Development Coordinator. Received it again; thus she Villa made no response.
SHOW CAUSE Order by Ernesto L. Mendiola in, requiring her to show cause why a fine should not be imposed on her or a cease-and-desist order. Order of Commissioner Dizon imposing on her a fine of P10,000.00 and requiring her to cease operations until further orders from his office. The order made no mention of the documents she had transmitted. Villa saw Deputized Zoning Administrator of GENSAN, Isidro M. Olmedo. issued to her a "CERTIFICATE OF ZONING COMPLIANCE" project conformed with city’s land use plan. Sent same day to Comm. Dizon by mail. Writ of execution signed by Commissioner Dizon above mentioned, imposing a fine of P10,000.00. MFR, In addition, Villa executed SPA authorizing Anastacio Basas to "deliver to HSRC all documents required by the said Commission Dizon denied reconsideration: final and executory. Appeal & subsequent MFR were also denied. Villa appealed to OP, Presidential Assistant for Legal Affairs, Manuel M. Lazaro. Likewise no reference to telegrams sent. MFR denied Official incompetence of gross negligence and abdication of duty, if not of active bias and partiality, that is most reprehensible. There is no question that Dr. Jesus Veneracion had resorted to the proscribed practice of forumshopping. Villa not once but thrice furnished the Commission by registered mail with copies All of the foregoing translate to a denial of due process against which the defense of failure of timely appeal will not avail. Well-esconced in jurisprudence is that administrative proceedings are not exempt from the operation of certain basic and fundamental procedural principles, such as the due process requirements in investigations and trials.
And this administrative due process is recognized to include (a) the right to notice (b) reasonable opportunity to appear and defend his rights, introduce witnesses and relevant evidence in his favor, (c) impartial tribunal (d) a finding or decision by that tribunal supported by substantial evidence
UTE PATEROK vs. BUREAU OF CUSTOMS hon Salvador mison G.R. Nos. 90660-61 January 21,
1991 SARMIENTO, J
DECISION rendered affirming the previous order of the Collector of Customs. Hence, this petition for certiorari alleging that:1 Customs erred in ruling that a notice of hearing posted in bulletin board is sufficient notice, and failure of petitioner to appear caused her default Yes. Notice of hearing posted on the bulletin board of the public respondent in a forfeiture proceeding where the owner of the alleged prohibited article is known does not constitute sufficient compliance with proper service of notice and proc. due process. In this case, the facts show that the petitioner could not have been unknown. The petitioner had previous transactions with Customs and in fact, the latter had released the earlier containers. If only the public respondents had exercised reasonable diligence then, petitioner would have been afforded the opportunity to be heard and to present defense = the essence of procedural due process.
Despite procedural infirmity aforementioned, for which the Court expresses its rebuke, the petition nonetheless can not be granted. This brings us to the 2nd & 3rd assignments of error raised by the petitioner.
Certiorari filed by Ute Paterok seeking the annulment of Customs’ forfeiture order against the shipment of 1MB in favor of the government. In March 1986, Paterok shipped from Germany to the Philippines 2 containers, one with used household goods and the other with 2 used automobiles (one Bourgetti and one MB 450 SLC). 1st container and the Bourgetti were released; MB however, remained under custody. In December 1987, after earnest efforts to secure the release, Ute received notice of hearing, that seizure proceedings were being initiated against the MB for violation of BP73 in relation to Tariff and Customs Code of the Phils (TCCP), and Central Bank Circular (CBC) 1069. While pending, the petitioner received only on April, 1988, a letter 4 informing her that a decision ordering the forfeiture had been rendered. The petitioner had not been informed that a separate seizure case was filed on the same Mercedes Benz in question before the said District Collector, an office likewise under the Bureau of Customs. The petitioner later found out that on November 13, 1986, a Notice of Hearing set on December 2, 1986, concerning the said Mercedes Benz, was posted on the bulletin board of the Bureau of Customs at Port Area, Manila. Ute then filed a motion for new trial before the Collector of Customs, Port of Manila, but the latter, denied the same, invoking failure despite the posting of the notice on the bulletin board. Moreover, the Collector of Customs contended that reopening of the case was an exercise in futility considering that it had an engine displacement of more than 2800cc thus under prohibited importation pursuant to B.P. Blg. 73. Petition for review with Dep. Finance, letter to Cancio Garcia, the Assistant Executive Secretary for Legal Affairs, OP requesting for a speedy resolution of the said petition.
Batas Pambansa Blg. 73, (3) a law promoting energy conservation, provides that MB is liable for seizure and forfeiture by the public respondents. The law is clear and when there is no distinction on the term "importation", we must not distinguish.
"Ubi lex non distinguit nec nos distinguiere debemus."
Finally, the petitioner invokes Sec. 2307 of the TCCP, as amended by EO38 which provides an alternative in lieu of forfeiture : payment of fine or redemption of the forfeited property. But redemption shall not be allowed in any case where the importation is absolutely prohibited There is nothing in the Code that authorizes the Collector to release the contraband in favor of an importer. He must make sure that the engine is changed before it is allowed to ply Philippine soil. In all cases, forfeiture is a must. Petition for certiorari is DISMISSED padilla j dissents The MB
in the case at bar, having been admittedly imported, but not manufactured or assembled in violation of Sec. 3(a) of BP 73, is not, therefore, subject to confiscation and forfeiture in favor of the Government.
HAYDEE CASIMIRO, Municipal Assessor of San Jose, Romblon vs. FILIPINO TANDOG, Municipal Mayor of San Jose, Romblon [G.R. No. 146137. June 08, 2005] CHICO-NAZARIO, J.:
Petition for review on certiorari of CA decision which affirmed CSC Resolution, affirming the Decision of Mayor Tandog finding petitioner Casimiro guilty of dishonesty and ordering her dismissal from service
Found guilty of Dishonesty and Malperformance of duty and separated from service. Undeterred, she appealed to the CSC, which affirmed. MFR denied Dissatisfied, petitioner elevated to CA. CA affirmed the CSC decision. MFR denied. Issue: whether petitioner was afforded procedural and substantive due process; was petitioner afforded an impartial and fair treatment She claims bias and partiality on the fact-finding committee: Lorna Tandog Vilasenor, a member, is sister of Mayor. Nelson Andres was appointed by the respondent Mayor to AO II then appointed chairman. YES. Petition bereft of merit. Article III (1) of the Bill of Rights states that:SECTION 1. No person shall be deprived of life, liberty, or property without due process of law.. PROC due process “refers to the method or manner by which the law is enforced; embodied in the basic requirement of notice and opportunity to be heard. In admin proceedings, procedural due process has been recognized to include the following: (1) the right to notice of the institution of proceedings which may affect a respondent’s legal rights; (2) a real opportunity to be heard, to present witnesses and evidence in one’s favor, and to defend one’s rights; (3) an impartial tribunal (4) a finding by said tribunal supported by substantial evidence As to SUBST due process, law requires that the quantum of proof necessary for a finding of guilt in administrative cases is substantial evidence or such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. Wellentrenched is the rule that substantial proof, and not proof beyond reasonable doubt, is sufficient basis for the imposition of disciplinary action
Thus, the tax declaration of complainants must first be surrendered before she could effectively cancel their tax declarations and issue new ones in favor of family. But she failed to present such cancelled declarations. She did not even allege that the same had been surrendered to her for cancellation
Petitioner Casimiro began as assessment clerk in the Office of the Treasurer of San Jose, Romblon. Then she was appointed Municipal Assessor. Administrative Officer II Nelson Andres, submitted a report based on an investigation he conducted into irregularities in petitioner’s office. The report spoke of an anomalous cancellation of Tax Declarations of Teodulo Matillano, and the issuance of a new one in petitioner’s brother Ulysses Cawaling and Tax Declarations of Antipas San Sebastian and the issuance of new ones in favor of petitioner’s brother-in-law Marcelo Molina. Immediately thereafter, respondent Mayor Tandog issued a M.O placing petitioner under preventive suspension for 30 days. 3 days later, Mayor issued another MO directing petitioner to answer the charge of irregularities. In her answer, she denied such claiming, in essence, that the cancellation in favor of her brother was done prior to her assumption to office; and that that in favor of her brother-in-law is by virtue of a deed of sale. Yet another MO extended prev. susp. for another 30 days for more time to verify/collate evidence. MO was issued by Mayor directing her to answer in writing the affidavit-complaint of Cesar and Matillano; that tax declarations covering land owned by her parents were transferred to petitioner’s brother-in-law, without the necessary documents; and that Marcelo Molina had not yet paid the full purchase price of the land covered by the said Tax Declarations. For his part, Matillano claimed he never executed a deed of absolute sale Unsatisfied, Mayor created a fact-finding committee to investigate. After hearings, committee recommended petitioner’s separation from service.
GLOBE v NTC[G.R. No. 143964. July 26, 2004] TINGA, J.: Globe & Smart are both grantees of franchises authorizing them to operate a Cellular Mobile Telephone System (“CMTS”), utilizing GSM tech. Among the inherent services is SMS or “texting,”. Smart filed with NTC praying for immediate interconnection of Smart’s and Globe’s GSM networks, particularly SMS or texting services. The Complaint arose from the inability of the two leading CMTS providers to effect interconnection. Smart alleges Globe, in badfaith, refuses to grant Smart’s request for interconnection. NTC issued a Show Cause Order to Globe, for refusal to interconnect, in violation of the mandate of RA7925, EO 39, and respective IRRs. Globe filed its Answer with Motion to Dismiss, saying Complaint was premature, Smart’s failure to comply with MC conditions, and its omission of the mandatory Cert of Non-Forum Shopping. Smart responded that it already submitted the documents asked by Globe and that interconnection could be had by merely amending the parties’ existing CMTS-to-CMTS interconnection agreements. NTC ordered, after noting that both Smart and Globe were “equally blameworthy” for their lack of cooperation, and held that since SMS falls squarely within the definition of “value-added service” or “enhanced-service” given in NTC MC 8-9-95 the implementation of SMS interconnection is mandatory pursuant to EO 59 The NTC also declared that both Smart and Globe have been providing SMS without authority from it, in violation of Section 420 (f) of MC No. 8-9-95 which requires PTEs intending to provide valueadded services (VAS) to secure prior approval from NTC through an administrative process. Yet, in view of what it noted as the “peculiar circumstances” of the case, NTC refrained from issuing a Show Cause Order with a Cease and Desist Order, and instead directed the parties to secure the requisite authority to provide SMS within thirty (30) days, subject to the payment of fine in the amount of two hundred pesos (P200.00) “from the date of violation and for every day during which such violation continues.”
Globe filed a Petition for Certiorari and Prohibition with CA. It also claimed that NTC acted without jurisdiction in declaring that it had no authority to render SMS, pointing out that the matter was not raised as an issue before it at all. Finally, Globe alleged that the Order is null as it imposed an administrative penalty for an offense for which neither it nor Smart was sufficiently charged, nor heard on; a violation of right to due process. CA issued TRO Globe also cited NTC’s earlier decision re: ISLACOM. It held that SMS is a deregulated special feature of the telephone network and therefore does not require the prior approval of NTC. Thus departure from its ruling in Islacom constitutes a denial of equal protection of the law. CA affirmed NTC Order in toto. Interestingly, on the same day Globe and Smart voluntarily agreed to interconnect their SMS systems, effected midnight. Yet Globe filed Motion for Partial Reconsideration asserted that the more salient issue was whether NTC complied with its own Rules of Practice and Procedure before making the finding of want of authority and imposing the fine. Globe reiterated its SMS operation since 1994 and that SMS being a deregulated special feature of the telephone network it may operate SMS without prior approval of NTC. CA denied MPR hence it elevated to SC. (1) whether NTC may legally require Globe to secure NTC approval before it continues providing SMS; (2) whether SMS is a VAS under the PTA, or special feature under NTC MC No. 14-11-97; and (3) whether NTC acted with due process in levying the fine against Globe. Another issue is also raised – whether Globe should have first filed a motion for reconsideration before the NTC, but this relatively minor question can be resolved in brief. Necessity of Filing Motion for Reconsideration Generally, a motion for reconsideration is a prerequisite for the filing of a petition for certiorari. In opting not to file the motion for reconsideration, Globe asserted before the Court of Appeals that the case fell within the exceptions to the general rule.
The principles, guidelines, rules and regulations that govern a deregulated system must be firmly rooted in the law and regulations that implement the deregulation regime. The implementation must likewise be fair and evenhanded. ISLACOM application case vs (MC No. 8-9-95) to justify its claim that Globe and Smart need to secure prior authority from the NTC before offering SMS. Public Telecommunications Act The PTA has not strictly adopted laissez-faire as underlying philosophy for the telecom industry Section 11 recognizes that VAS providers need not secure a franchise, provided that they do not put up their own network. However, a different rule is laid down for telecommunications entities such as Globe and PLDT. The section unequivocally requires NTC approval for the operation of a value-added service. Telecommunications entities may provide VAS, subject to the additional requirements that: a) prior approval of the Commission is secured More pertinently to the case at bar, the qualification highlights the fact that the legal rationale for regulation of VAS is severely limited. There is an implicit recognition that VAS is not strictly a public service offering in the way that voice-to-voice lines are, for example, but merely supplementary to the basic service. Ultimately, the regulatory attitude of the State towards VAS offerings by PTEs is to treat its provisioning as a “business decision” subject to the discretion of the offeror, so long as such services do not interfere with mandatory public service requirements imposed on PTEs such as those under E.O. No. 109. Thus, non-PTEs are not similarly required to secure prior approval before offering VAS, as they are not burdened by the public service requirements prescribed on PTEs. Due regard must be accorded to this attitude, which is in consonance with the general philosophy of deregulation expressed in the PTA. The Pertinent NTC Memorandum Circulars: Is SMS a VAS, “enhanced service,” or a “special feature”? Apparently, even the NTC is unsure. It had told Islacom that SMS was a “special feature,” then subsequently held that it was a “VAS.” However, the pertinent laws and regulations had not
changed from the time of the Islacom letter up to the day the Order was issued. Only the thinking of NTC did. Every party subject to administrative regulation deserves an opportunity to know, through reasonable regulations promulgated by the agency, of the objective standards that have to be met. In short, the legal basis invoked by NTC in claiming that SMS is VAS has not been duly established. The fault falls squarely on NTC ***7 cardinal primary rights in justiciable cases before administrative tribunals, as enumerated in Ang Tibay v. CIR. NTC violated several of these cardinal rights due Globe in the promulgation of the assailed Order. First. The NTC Order is not supported by substantial evidence. Neither does it sufficiently explain the reasons for the decision rendered. Second. Globe and Smart were denied opportunity to present evidence on the issues relating to the nature of VAS and the prior approval. 3rd. Fine imposed is void for violating due process. It requires due notice and hearing because fine is a sanction, regulatory and even punitive in character. In summary: (i) there is no legal basis under the PTA or the memorandum circulars promulgated by the NTC to denominate SMS as VAS (ii) the assailed Order violates due process for failure to sufficiently explain the reason for the decision rendered, for being unsupported by substantial evidence, and for imputing violation to, and issuing a corresponding fine on, Globe despite absence of due notice and hearing The credibility of an administrative agency entrusted with specialized fields subsists not on judicial doctrine alone, but more so on its intellectual strength, adherence to law, and basic fairness. WHEREFORE, the petition is GRANTED
ARSENIO LUMIQUED Regional Director, DAR — CAR, Represented by his Heirs vs. Honorable APOLONIO EXEVEA G.R. No. 117565 November 18, 1997 ROMERO, J.: Arsenio P. Lumiqued was the Regional Director of DAR-CAR until FVR dismissed him pursuant to AO52. In view of his death, his heirs instituted this petition for certiorari and mandamus. The dismissal was due to 3 complaints filed by DAR-CAR Regional Cashier and priv. resp. Jeannette Obar-Zamudio DAR Discipline Board. The first complaint charged Lumiqued with malversation through falsification of official documents. He committed at least 93 counts of falsification by padding gasoline and vulcanizing receipts, and was reimbursed 45k. He seldom made field trips and stayed in the office, thus impossible to consume 120 L of gasoline he claimed everyday. 2nd complaint accused him with violation of COA rules and regs, that from April to October 1989, he made unliquidated cash advances in the total amount of 116k and deliberately concealed such thru falsification of accounting entries. 3rd charged him with oppression and harassment; he retaliated due to her charges by relieving her from her post as Regional Cashier without just cause. Posted to DOJ for appropriate action, Acting Justice Secretary Eduardo Montenegro issued DO145 creating a committee to investigate the complaints. Said order appointed Regional State Prosecutor Apolinario Exevea as committee chairman with City Prosecutor Balajadia and ProvProsecutor Cabading as members. Ordered to investigate 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 counteraffidavit but he 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.
He alleged that said cases were filed against him to extort money and were initiated 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. GAS: he says such consumption was warranted as it was the aggregate consumption of the five service vehicles issued under his name. As 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. COA: he presented a certification 7 of DAR-CAR Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record. Oppression and harassment: she was not terminated but relieved of her duties due to her prolonged absences. LOA apps denied and no med cert Committee hearings were conducted but he was not assisted by counsel. On the second hearing date, he moved to reset 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. He filed an urgent motion for additional hearing, 8 alleging that he suffered a stroke on said date. Motion was forwarded to the Office of the State Prosecutor because the investigation had already been terminated. Committee rendered report finding Lumiqued liable for all the charges against him (Gross Dishonesty and Grave Misconduct), recommending removal without prejudice to crim charges Drilon says that the filing of the affidavit of desistance would not prevent the issuance of a resolution because it also concerns his fitness to remain in public office." MFR thru efforts of Undersec Esguerra. Committee however stated it had no more authority to act as such had been forwarded to OP and that their authority under Department Order No. 145 ceased when they transmitted their report to DOJ.
FVR issued A.O. No. 52, finding Lumiqued administratively liable for dishonesty in the alteration gas receipts, and dismissing him from the service, & forfeited retirement & other benefits. Unsatisfactorily established: harassment & cash advances Petition for appeal / MFR: premised on the affidavit 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 being an "honest man" DENIED Second MFR: alleging he was denied the constitutional right to counsel during the hearing. But before motion could be resolved, HE DIED. Still DENIED CERTIORARI and MANDAMUS seeking reversal; retirement benefits and other benefits payable to his heirs; + backwages Petitioners fault the investigating committee for its failure to inform him of his right to counsel during the hearing. 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. 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. 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. 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
***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. Excerpts of transcript clearly show that he was confident of his capacity and so opted to represent himself. Lumiqued, a Regional Director of a major department in the executive branch of the government, graduated from the University of the Philippines (Los Baños) 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. 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. 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 administrative proceedings, the essence of due process is simply the opportunity to explain one's side. 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
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