ADMIN CASES

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 69871 August 24, 1990

ANITA VILLA, petitioner, 
vs.
MANUEL LAZARO, as Presidential Assistant for Legal Affairs, Office of the President, and the
HUMAN SETTLEMENTS REGULATORY COMMISSION, respondents.

Eliseo P. Vencer II for petitioner.

NARVASA, J.:

On January 18, 1980, Anita Villa was granted a building permit to construct a funeral parlor at Santiago Boulevard in Gen. Santos City. 1 The
permit was issued by the City Engineer after the application was "processed by Engineer Dominador Solana of the City Engineer's Office,
and on the strength of the Certification of Manuel Sales, City Planning and Development Coordinator that the "project was in consonance
with the Land Use Plan of the City and within the full provision of the Zoning Ordinance". 2 With financing obtained from the Development
Bank of the Philippines, Villa commenced construction of the building.

In October of that same year, as the funeral parlor was nearing completion, a suit for injunction was
brought against Villa by Dr. Jesus Veneracion, the owner of St. Elizabeth Hospital, standing about
132.36 meters from the funeral parlor.   The complaint sought the perpetual enjoinment of the
3

construction because allegedly violative of the Zoning Ordinance of General Santos City.   A status 4

quo order was issued.

After appropriate proceedings and trial, judgment on the merits was rendered on November 17,
1981, dismissing Veneracion's complaint as well as the counterclaim pleaded by Villa. The Trial
Court found that there was a falsifiedZoning Ordinance, containing a provision governing funeral
parlors, which had been 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 whatever relative to such parlors'
"distance from hospitals, whether public or private".   Villa then resumed construction of her building
5

and completed it.  6

Veneracion did not appeal from this adverse judgment which therefore became final. Instead, he
brought the matter up with the Human Settlements Regulatory Commission. He lodged a complaint
with that commission praying "that the funeral parlor be relocated because it was near the St.
Elizabeth Hospital and Villa failed to secure the necessary locational clearance".   The complaint, as 7

will at once be noted, is substantially the same as that filed by him with the Court of First Instance
and dismissed after trial. Furthermore, neither he nor the Commission, as will hereafter be narrated,
ever made known this second complaint to Villa until much, much later, after the respondent
Commission had rendered several adverse rulings to her.  8
Two months after the rendition of the judgment against Veneracion, or more precisely on January
22, 1982, Villa received a telegram dated January 21 from Commissioner Raymundo R. Dizon of the
Human Settlements Regulatory Commission reading as follows:  9

THE HUMAN SETTLEMENT REGULATORY COMMISSION REQUEST

TRANSMITTAL OF PROOF OF LOCATIONAL CLEARANCE GRANTED BY THIS
OFFICE IMMEDIATELY UPON RECEIPT OF THIS . . NOT LATER THAN 21ST
JANUARY 1982 REGARDING YOUR ON GOING CONSTRUCTION OF A
FUNERAL PARLOR AT SANTIAGO STREET CORNER NATIONAL HIGHWAY
GENERAL SANTOS CITY AN OFFICIAL COMMUNICATION TO THE EFFECT
FOLLOWS.

On the same day, January 22, 1982, Villa sent Dizon a reply telegram reading: "LOCATIONAL
CLEARANCE BASED ON CERTIFICATION OF CITY PLANNING AND DEVELOPMENT
COORDINATOR AND HUMAN SETTLEMENT OFFICER, COPIES MAIL . . ."   This she did on 10

January 27,1982; under Registry Receipt No. 1227 (Gen. Santos City Post Office),   Villa sent to
11

Dizon –

1) the certification dated October 24, 1980 of Josefina E. Alaba (Human Settlements Officer, Gen.
Santos City) to the following effect: 
12

. . that per scrutiny of the documents presented by Mrs. Anita Villa on her application
for a Funeral Parlor and inspection of lot No. 4997 along Santiago Boulevard where
the building is to be constructed, the undersigned guarantees that the application
passed the criteria of this office for this purpose.

2) and the certification of Manuel O. Sales, City Planning and Development Coordinator, dated
December 27, 1979,   that:
13

. . the proposed project (funeral Chapel) of Anita G. Villa, located at Lot No. 4997
along Santiago Boulevard is in consonance with the land Use Plan of the City and
within the full provision of the Zoning Ordinance.

On February 8, 1982 Villa received what was evidently the official communication" referred to in
Commissioner Dizon's telegram of January 21, 1982, supra, an "Order to Present Proof of
Locational Clearance" dated January 20, 1982. Knowing this and "considering also that she . . (had)
already sent the (required) locational clearance on January 27, 1982," Villa made no response.  14

No doubt with no little discomfiture Villa received on June 2, 1982 a "Show Cause" Order dated April
28,1982, signed by one Ernesto L. Mendiola in behalf of the Commission, requiring her to show
cause why a fine should not be imposed on her or a cease-and-desist order issued against her for
her failure to show proof of locational clearance.   The order made no reference whatever to the
15

documents she had already sent by registered mail as early as January 27, 1982. The following day
Villa sent a telegram to Commissioner Dizon reading as follows:  16

LOCATIONAL CLEARANCE WAS MAILED THRU REGISTERED MAIL REGISTRY

RECEIPT NUMBER 1227 DATED JANUARY 27, 1982, SENDING AGAIN THRU
REGISTERED MAIL REGISTRY RECEIPT NO. 6899 JUNE 3, 1982.
 On the same day, she also sent to Commissioner Dizon by registered mail (Reg Receipt No.
6899), as indicated in her telegram, the same certifications earlier sent by her also by
registered mail (Reg Receipt No. 1227), supra.

If she thought the affair had thus been satisfactorily ended, she was sadly in error, of which she was
very shortly made aware. On July 27, 1982, she received an Order of Commissioner Dizon dated
June 29, 1982 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 by
17

registered mail on January 27, 1982 and June 3, 1982, or to her telegrams on the matter. Villa
forthwith went to see the Deputized Zoning Administrator of General Santos City, Isidro M. Olmedo.
The latter issued to her a "CERTIFICATE OF ZONING COMPLIANCE" No. 0087, dated July
28,1982, inter alia attesting that the land on which Villa's "proposed commercial building" was
located in a vicinity in which the "dominant land uses" were "commercial/institutional/residential," and
the project conformed "WITH THE LAND USE PLAN OF THE CITY."   This certificate Villa sent on
18

the same day to Commissioner Dizon by registered mail (Reg. Receipt No. 1365 [Gen. Santos City
P.O.]).   It is noteworthy that this Certificate No. 0087 is entirely consistent with the earlier
19

certification dated November 27, 1979 of City Planning & Development Coordinator Sales that Villa's
funeral chapel was "in consonance with the Land Use Plan of the City and within the full provision of
the Zoning Ordinance," supra,   and that of Human Settlements Officer Alaba dated October 24,
20

1980, supra   that Villa's "application for a Funeral Parlor . . passed the criteria of this office for this
21

purpose." Villa could perhaps be understandably considered justified in believing, at this time, that
the matter had finally been laid to rest.

One can then only imagine her consternation and shock when she was served on November 16,
1982 with a writ of execution signed by Commissioner Dizon under the date of October 19, 1982 in
implementation of his Order of June 29, 1982, above mentioned, imposing a fine of P10,000.00 on
her. Again, this Order, like the others issuing from respondent Commission, made no advertence
whatever to the documents Villa had already sent to respondent Commission by registered mail on
January 27, June 29, and July 28, 1982, or her telegrams Be this as it may, she lost no time in
moving for reconsideration, by letter dated November 22, 1982 to which she attached copies of the
documents she had earlier sent to Commissioner Dizon, viz.: her telegram of January 22, 1982,   (2) 22

the certification of the City Planning & Development Coordinator   (3) the certification of the Human
23

Settlements Officer   (4) the telegram dated June 3, 1982,  and (5) the Certificate of Zoning
24 25

Compliance dated July 28, 1982.   In addition, Villa executed a special power of attorney on
26

December 10, 1982 authorizing Anastacio Basas to "deliver to the Human Settlements Regulatory
Commission . . all my papers or documents required by the said Commission as requisites for the
issuance to me and/or the Funeraria Villa . . (of) the locational clearance for the construction of my
funeral parlor along Santiago boulevard, General Santos City. . .   pursuant to which on December
27

15, 1982, said Basas delivered to the Commission (Enforcement Office), thru one Betty
Jimenez   copies of Villa's (1) building plan, (2) building permit,   (3) occupancy permit,   and (4)
28 29 30

"the decision of the Court case involving the funeral parlor".  31

By Order dated January 21, 1983, Commissioner Dizon denied the reconsideration prayed for by
Villa in her letter of November 22, 1982, opining that the plea for reconsideration had been
presented out of time,   and the order of June 29, 1982 had become final and executory. 
32 33

Villa then filed an appeal with "the Commission Proper, which denied it in an order dated September
7, 1983, also on account of the finality of the order of the Commissioner for Enforcement. Her
subsequent motion for reconsideration . . (was also) denied in the order of June 7, 1984 . .  34

Villa then sought to take an appeal to the Office of the President. The matter was acted on by the
Presidential Assistant for Legal Affairs, respondent Manuel M. Lazaro. In a Resolution dated
September 21, 1984, respondent Lazaro denied the "appeal and (Villa's) motion for extension of
time to submit an appeal memorandum".   It is noteworthy that Lazaro's resolution, like the orders of
35

Commissioner Dizon and respondent Commission, contains no reference whatsoever to the

telegrams and documents sent by Villa to the latter on various occasions evidencing her prompt
responses to the orders of Dizon and the Commission, and her substantial compliance with the
general requirement for her to present the requisite clearances or documents of authority for the
erection of her funeral parlor. The very skimpy narration of facts set out in the resolution limits itself
merely to a citation of the orders of Commissioner Dizon and the Commission; and on that basis, the
resolution simplistically concludes that "no appeal was seasonably taken by Mrs. Anita Villa from the
order of June 29, 1982, of the HSRC . . (and) (a)ccordingly, said order became final for which reason
a writ of execution was issued . . (which) finality was confirmed in the subsequent orders of HSRC,
dated January 21, 1983, and September 7, 1983."

Villa filed a motion for reconsideration dated October 19, 1984, this time through counsel,
contending that the resolution of September 21, 1984 was "not in conformity with the law and the
evidence" and deprived her of due process of law.   But this, too, was denied (with finality) by
36

respondent Lazaro, in a Resolution dated December 14, 1984 which again omitted to refer to the
several attempts of Villa to comply with the order of Commissioner Dizon to present the requisite
documents of authority anent her funeral parlor and adverted merely to the orders emanating from
Dizon and the respondent Commission.  37

These facts present a picture of official incompetence of gross negligence and abdication of duty, if
not of active bias and partiality, that is most reprehensible. The result has been to subvert and put to
naught the Judgment rendered in a suit regularly tried and decided by a court of justice, to deprive
one party of rights confirmed and secured thereby and to accord her adversary, in a different forum,
the relief he had sought and been denied in said case.

There is no question that Dr. Jesus Veneracion had resorted to the proscribed practice of forum-
shopping when, following adverse judgment of the Court of First Instance in his suit to enjoin the
construction of Villa's funeral parlor, he had, instead of appealing that judgment, lodged a complaint
with the respondent Commission on substantially the same ground litigated in the action. Also
undisputed is that while the respondent Commission took cognizance of the complaint and by
telegram required Villa to submit a locational clearance, said respondent did not then or at any time
before issuance of the order and writ of execution complained of bother to put her on notice, formally
or otherwise, of Veneracion's complaint. It was therefore wholly natural for Villa to assume, as it is
apparent she did, that no formal adversarial inquiry was underway and that the telegram was what it
purported to be on its face: a routinary request, issued motu proprio, to submit proof of compliance
with locational requirements. And such assumption was doubtless fortified by petitioner's knowledge
that she already had in her favor a judgment on the subject against which her opponent had taken
no recourse by appeal or otherwise.

Neither is there any serious dispute about what transpired thereafter, as already recounted and, in
particular, about the fact that in response to that first and the subsequent demands sent by
Commissioner Dizon, Villa not once but thrice furnished the Commission by registered mail with
copies, variously, of official documents certifying to her compliance with the pertinent locational,
zoning and land use requirements and plans. None of these documents appears to have made any
impression on Commissioner Dizon, whose show-cause order of April 28, 1982 and order of June
29, 1982 imposing a P10,000.00 fine on petitioner made no mention of them whatsoever. Not even
Villa's submission of said documents a fourth time to support her motion for reconsideration of a writ
of execution could move Commissioner Dizon to stop acting as if said documents did not exist at all.
True, only copies had been submitted, but ordinary prudence and fairness dictated at least some
inquiry into their authenticity, and this would not have posed any great difficulty considering their
purportedly official origins.

The mischief done by Commissioner Dizon's baffling failure (or obdurate refusal) even to
acknowledge the existence of the documents furnished by petitioner was perpetuated by the
"Commissioner proper" and respondent Lazaro (Presidential Assistant on Legal Affairs), who threw
out petitioner's appeals with no reference whatsoever thereto and thereby kept in limbo evidence
that would have been decisive. The Solicitor General's brief Comment of September 3,
1985   neither admits nor denies Villa's claim of having submitted the required documents; it avoids
38

any reference thereto and deals mainly with the question of the timeliness of her appeal to the
respondent Commission and the propriety of the present petition. From such silence and upon what
the record otherwise clearly shows, the Court remains in no doubt of the verity of said petitioner's
claim that she had more than once submitted those requisite documents.

There was absolutely no excuse for initiating what is held out as an administrative proceeding
against Villa without informing her of the complaint which initiated the case; for conducting that
inquiry in the most informal manner by means only of communications requiring submission of
certain documents, which left the impression that compliance was all that was expected of her and
with which directives she promptly and religiously complied; assuming that one of the documents
thus successively submitted had been received, but given the fact that on at least two occasions,
their transmission had been preceded by telegrams announcing that they would follow by mail, for
failing to call Villa's attention to their non-receipt or to make any other attempt to trace their
whereabouts; for ruling against Villa on the spurious premise that she had failed to submit the
documents required; and for maintaining to the very end that pretense of lack of compliance even
after being presented with a fourth set of documents and the decision in the court case upholding
her right to operate her funeral parlor in its questioned location.

Whether born of ineptitude negligence, bias or malice, such lapses are indefensible. No excuse can
be advanced for avoiding all mention or consideration of certifications issued by respondent
Commission's own officials in General Santos City, which included the very relevant one executed
by Human Settlements Officer Josefina E. Alaba that petitioner's application for a funeral parlor at
the questioned location had . . passed the criteria of this office for this purpose.   It was thus not
39

even necessary for petitioner to bring that document to the notice of the Commission which, together
with Commissioner Dizon, was chargeable with knowledge of its own workings and of all acts done
in the performance of duty by its officials and employees. Petitioner is plainly the victim of either
gross ignorance or negligence or abuse of power, or a combination of both. All of the foregoing
translate to a denial of due process against which the defense of failure to take timely appeal will not
avail. Well-esconced in our jurisprudence is the rule:

. . 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, be it actual or constructive, of the institution of the proceedings
that may affect a person's legal right; (b) reasonable opportunity to appear and
defend his rights, introduce witnesses and relevant evidence in his favor, (c) a
tribunal so constituted as to give him reasonable assurance of honesty and
impartiality, and one of competent jurisdiction; and (d) a finding or decision by that
tribunal supported by substantial evidence presented at the hearing, or at least
contained in the records or disclosed to the parties affected.  40

and, it being clear that some, at least, of those essential elements did not obtain or were not
present in the proceedings complained of, any judgment rendered, or order issued, therein
 was null and void, could never become final, and could be attacked in any appropriate
proceeding.

The Court finds no merit in the proposition that relief is foreclosed to Villa because her motion for
reconsideration of November 22, 1982 was filed out of time. The very informal character of the so-
called administrative proceedings, an informality for which Commissioner Dizon himself was
responsible and which he never sought to rectify, militates against imposing strict observance of the
limiting periods applicable to proceedings otherwise properly initiated and regularly conducted.
Indeed, considering the rather "off-the-cuff" manner in which the inquiry was carried out, it is not
even certain that said petitioner is chargeable with tardiness in connection with any incident thereof.
What the record shows is that she invariably responded promptly, at times within a day or two of
receiving them, to orders of communications sent to her. At any rate, the Court will not permit the
result of an administrative proceeding riddled with the serious defects already pointed out to negate
an earlier judgment on the merits on the same matter regularly rendered by competent court.

WHEREFORE, the petition is GRANTED. The proceedings complained of are ANNULLED and all
orders, writs and resolutions issued in the course thereof, beginning with the show cause order of
June 2, 1982 up to and including the challenged Resolutions of September 21, 1984 and December
14, 1984 of respondent Presidential Assistant Manuel Lazaro are VACATED and SET ASIDE, for
having been taken and/or issued in violation of petitioner's right to due process, without
pronouncement as to costs.

SO ORDERED.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 Named, as might be expected, "Funeraria Villa".

2 Rollo, p. 34 (Decision dated Nov. 17, 1981 of Hon. Pedro Samson C. Animas,
Judge of the then Court of First Instance of South Cotabato (Branch One) in Special
Civil Case No. 96 entitled, "Jesus Veneracion vs. Anita Villa".

3 Id., p. 36.

4 Id., pp. 34, 36.

5 Id., p. 40.

6 Id., p. 13.

7 Id., p. 27 (p. 1 of Resolution of respondent Lazaro dated Sept. 21, 1984).

8 Id., p. 32 (p. 2, Motion for Reconsideration dated Oct. 19, 1984).

9 Id., p. 14.

10 Id. p. 11 4.
11 Id.,p. 113-A,

12 Id.,p. 114 (Annex H).

13 Id., p. 115 (Annex I).

14 Id., pp. 14-15.

15 Id., pp. 15, 179.

16 Id., pp. 15, 116, 117.

17 Id., p. 15.

18 Id., pp. 15-16, 118.

19 Id., P. 119 (Annex K-3).

20 Footnote 10.

21 Footnote 11.

22 Footnotes, 10, 20.

23 Footnote 13.

24 Footnote 12.

25 Footnote 16.

26 Footnote 17.

27 Rollo, p. 143 (Annex U)

28 Id., pp. 171, 145: Reverse side (Annex W-1) of Routing Slip (Annex W).

29 Id., p. 121 (Annex M).

30 Id., p. 126 (Annex O).

31 Id., P. 127 (Annex Q).

32 Id., p. 169.

33 Id., p. 28.

34 Id., p. 28.

35 pp. 27-28.
 36 Id., pp. 31-33.

37 Id., pp. 29-30.

38 Rollo, pp. 12-80.

39 See supra Footnote, 10.

40 Air Manila, Inc. vs. Balatbat, 38 SCRA 489, 492 citing Asprec vs. Itchon, 16 SCRA
921, Garcia vs. Executive Secretary, 6 SCRA 1 and Ang Tibay vs. CIR, 69 Phil. 635.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-49711 November 7, 1979

ZAMBALES CHROMITE MINING CO., GONZALO P. NAVA, VIOLA S. NAVA, FEDERICO S.

NAVA, PERLA NAVA, HONORATO P. NAVA, ALEJANDRO S. NAVA, PURIFICACION SISON, A.
TORDESILLAS, GUIDO ADVINCULA, PEDRO ANGULO and TOMAS MARAMBA, petitioners-
appellants, 
vs.
COURT OF APPEALS, SECRETARY OF AGRICULTURE AND NATURAL RESOURCES,
DIRECTOR OF MINES, GREGORIO E. MARTINEZ, ALEJANDRO MENDEZ, NICANOR MARTY,
VICENTE MISOLES, GUILLERMO YABUT, ANDRES R. FIAGOY, MIGUEL A. MANIAGO,
CASIMIRO N. EBIDO, ENRIQUE RIVERA, SEVERINO MIVA, ELENITO B. MARTINEZ, LUCAS
EDURAIN, FELIMON ENCIO, EMILIO ILOCO, DIOSDADO MISOLA, ERNESTO VALVERDE,
PABLO PABILONA, ARMANDO MINAS, BARTOLOME MARAVE and CECILIO
OOVILLA, respondents-appellees.

Tordesilla & Advincula for petitioners-appellants.

Mariano M. Lozada for private respondents-appellees.

AQUINO, J.:

This is a mining case. The petitioners appealed from the second decision of the Court of
Appeals, reversing its first decision and holding that it was improper from Benjamin M. Gozon, as
Secretary of Agriculture and Natural Resources, to affirm his own decision as Director of Mines.

The Court of Appeals further held that the trial court's judgment, confirming the Secretary's decision,
should be set aside and that the Minister of Natural Resources should review anew the decision of
the Director of Mines "and, thereafter, further proceedings will be taken in the trial court". The
antecedental proceedings are as follows:
(1) In Mines Administrative Case No. V-227, Director Gozon issued an order dated October 5, 1960
wherein he dismissed the case filed by the petitioners or protestants (Zambales Chromite Mining
Co., Inc. or the group of Gonzalo P. Nava). In that case, they sought to be declared the rightful and
prior locators and possessors of sixty-nine mining claims located in Santa Cruz, Zambales.

On the basis of petitioners' evidence (the private respondents did not present any evidence and they
filed a demurrer to the evidence or motion to dismiss the protest), Director Gozon found that the
petitioners did not discover any mineral nor staked and located mining claims in accordance with
law.

In that same order, Director Gozon ruled that the mining claims of the groups of Gregorio Martinez
and Pablo Pabilona, now the private respondents-appellees, were duly located and registered (pp.
224-231, Record on Appeal).

(2) The petitioners appealed from that order to the Secretary of Agriculture and Natural Resources.
While the appeal was pending, Director Gozon was appointed Secretary of Agriculture and Natural
Resources. Instead of inhibiting himself, he decided the appeal, DANR Case No. 2151, on August
16, 1963 as it he was adjudicating the case for the first time. 'Thus, Secretary Gozon exercised
appellate jurisdiction over a case which he had decided as Director of Mines. He acted as reviewing
authority in the appeal from his own decision. Or, to use another analogy, he acted as trial judge and
appellate judge in the same case.

He ruled that the petitioners had abandoned the disputed mining claims, while, on the other hand,
the Martinez and Pabilona groups had validly located the said claims. Hence, he dismissed the
appeal from his own decision (pp. 340-341, Record on Appeal).

(3) On September 20, 1963, the petitioners filed a complaint in the Court of First Instance of
Zambales, assailing Secretary Gozon's decision and praying that they be declared the prior locators
and possessors of the sixty-nine mineral claims in question. Impleaded as defendants in the case
were the Secretary of Agriculture and Natural Resources, the Director of Mines and the members of
the Martinez and Pabilona groups.

After hearing, the lower court sustained Secretary Gozon's decision and dismissed the case. It held
that the disqualification petition of a judge to review his own decision or ruling (Sec. 1, Rule 137,
Rules of Court) does not apply to administrative bodies; that there is no provision in the Mining Law,
disqualifying the Secretary of Agriculture and Natural Resources from deciding an appeal from a
case which he had decided as Director of Mines; that delicadeza is not a ground for disqualification;
that the petitioners did not seasonably seek to disqualify Secretary Gozon from deciding their
appeal, and that there was no evidence that the Secretary acted arbitrarily and with bias, prejudice,
animosity or hostility to the petitioners (pp. 386-9, Record on Appeal).

(4) The petitioners appealed to the Court of Appeals. The Sixth Division of that Court (Pascual,
Agcaoili and Climaco, JJ.) in its decision dated February 15, 1978 reversed the judgment of the trial
court and declared that the petitioners were the rightful locators and possessors of the said sixty-
nine mining claims and held as invalid the mining claims overlapping the same.

That Division found that the petitioners (Nava group) had discovered minerals and had validly
located the said sixty-nine mining claims and that there was no sufficient basis for Secretary Gozon's
finding that the mining claims of the Martinez and Pabilona groups were validly located.

(5) The defendants, now the private respondents-appellees, filed a motion for reconsideration based
principally on the ground that the Court of Appeals should have respected the factual findings of the
Director of Mines and the Secretary of Agriculture and Natural Resources on the theory that the facts
found in administrative decisions cannot be disturbed on appeal to the courts, citing Republic Act
No. 4388 which amended section 61 of the Mining Law effective June 19, 1965; Pajo vs. Ago, 108
Phil. 905; Palanan Lumber & Plywood Co., Inc. vs. Arranz 65 O.G. 8473; Timbancaya vs. Vicente,
119 Phil. 169, Ortua vs. Singson Encarnacion, 59 Phil. 440.

The defendants-movants prayed that the appeal be dismissed, meaning that the decisions of the
lower court and of Director and Secretary Gozon be affirmed.

The petitioners opposed that motion for reconsideration. In their opposition, they reiterated the
contention in their brief that Secretary Gozon's decision was void and, therefore, the factual findings
therein are not binding on the courts.

As already stated, the same Sixth Division (composed of Pascula, Agrava and Maco, JJ.) in its
second decision of October 13, 1978, set aside its first decision and granted the motion for curiously
enough, the first decision was reconsidered not on the ground advanced by the movants-
defendants, now the private respondents (Martinez and Pabilona groups), which was that the factual
findings of the administrative officials should be upheld, but on the ground raised in petitioners'
opposition, namely, that Secretary Gozon's decision was void because he was disqualified to review
his own decision as Director of Mines.

So, as already noted, the Court of Appeals in its second decision remanded the case to the Minister
of Natural Resources for another review of Director Gozon's decision. This was the prayer of the
petitioners in their brief but in their opposition to the motion for reconsideration, they prayed that the
first decision of the Court of Appeals in their favor be maintained.

(6) The second decision did not satisfy the parties. They filed motions for reconsideration. The
petitioners in their motion reiterated their prayer that the first decision be reinstated. They
abandoned their prayer that the case be returned to the Minister of Natural Resources. On the other
hand, the private respondents in their motion insisted that the trial court's decision be affirmed on the
basis of the factual findings of the Director of Mines and the Secretary of Agriculture and Natural
Resources. The Court of Appeals denied both motions in its resolutions of December 27, 1978 and
January 15, 1979.

Only the petitioners appealed from the second decision of the Court of Appeals. There is an
arresting and noteworthy peculiarity in the present posture of this case now on appeal to this Court
(as arresting and noteworthy as the peculiarity that Secretary Gozon reviewed his own decision as
Director of Mines),

That twist or peculiarity is that while the petitioners (Nava group) in their appellants' brief in the Court
of Appeals prayed that Secretary Gozon's decision, alleged to be biased, be declared void and that
the case be returned to the Secretary of Agriculture and Natural Resources for another review of
Director Gozon's order, in their appellants' brief in this Court, they changed that relief and they now
pray that the second decision of the Court of Appeals, referring this case to the Minister of Natural
Resources for another review, be declared void and that its first decision be affirmed.

In contrast, the private respondents, who did not appeal from the second decision of the Court of
Appeals, instead of sustaining its holding that this case be referred to the Minister of Natural
Resources or instead of defending that second decision, they being appellees, pray for the
affirmance of the trial court's judgment sustaining the decisions of Director and Secretary Gozon.
The inconsistent positions of the parties, which were induced by the contradictory decisions of the
Court of Appeals, constitute the peculiar twist of this case in this Court.

We hold that Secretary Gozon acted with grave abuse of discretion in reviewing his decision as
Director of Mines. The palpably flagrant anomaly of a Secretary of Agriculture and Natural
Resources reviewing his own decision as Director of Mines is a mockery of administrative justice.
The Mining Law, Commonwealth Act No. 13-i, provides:

SEC. 61. Conflicts and disputes arising out of mining locations shall be submitted to
the Director of Mines for decision:

Provided, That the decision or order of the Director of Mines may be appealed to the
Secretary of Agriculture and Natural Resources within thirty days from the date of its
receipt.

In case any one of the parties should disagree from the decision or order of the
Director of Mines or of the Secretary of Agriculture and Natural Resources, the
matter may be taken to the court of competent jurisdiction within thirty days from the
receipt of such decision or order; otherwise the said decision or order shag be final
and binding upon the parties concerned. (As amended by Republic Act No. 746
approved on June 18,1952).*

Undoubtedly, the provision of section 61 that the decision of the Director of Mines may be appealed
to the Secretary of Agriculture and Natural Resources contemplates that the Secretary should be a
person different from the Director of Mines.

In order that the review of the decision of a subordinate officer might not turn out to be a farce the
reviewing officer must perforce be other than the officer whose decision is under review; otherwise,
there could be no different view or there would be no real review of the case. The decision of the
reviewing officer would be a biased view; inevitably, it would be the same view since being human,
he would not admit that he was mistaken in his first view of the case.

That is the obvious, elementary reason behind the disqualification of a trial judge, who is promoted
to the appellate court, to sit in any case wherein his decision or ruling is the subject of review (Sec.
1, Rule 137, Rules of Court: secs. 9 and 27, Judiciary Law).

A sense of proportion and consideration for the fitness of things should have deterred Secretary
Gozon from reviewing his own decision as Director of Mines. He should have asked his
undersecretary to undertake the review.

Petitioners-appellants were deprived of due process, meaning fundamental fairness, when Secretary
Gozon reviewed his own decision as Director of Mines. (See Amos Treat & Co. vs. Securities and
Exchange Commission, 306 F. 2nd 260, 267.)

WHEREFORE, we set aside the order of the Secretary of Agriculture and Natural Resources dated
August 16, 1963 as affirmed by the trial court as well as the first decision of the Court of Appeals.

We affirm its second decision, returning the case to the Minister of Natural Resources, with the
directive that petitioners' appeal to the Minister be resolved de novo with the least delay as provided
for in Presidential Decree No. 309, "establishing rules and procedures for the speedy disposition or
settlement of conflicting mining claims".
We reverse the second part of that second decision stating that "thereafter, further proceedings will
be taken in the trial court". That portion is unwarranted because the trial court does not retain any
jurisdiction over the case once it is remanded to the Minister of Natural Resources. No costs.

SO ORDERED.

Antonio, Santos and Abad Santos, JJ., concur.

Concepcion Jr., J, took no part.

Separate Opinions

Barredo, J.: concurring:

Concur but wish to add that the reason why the undersecretary could ask is because when the
secretary is disqualified, he should be deemed as absent or incapacitated to ask, hence the
undersecretary should be correspondingly deemed as the secretary for the purposes of the case in
question. Needless to say, the undersecretary should ask in such a way as to avoid any indication
that he has been dictated upon actually by the secretary.

# Separate Opinions

Barredo, J.: concurring:

Concur but wish to add that the reason why the undersecretary could ask is because when the
secretary is disqualified, he should be deemed as absent or incapacitated to ask, hence the
undersecretary should be correspondingly deemed as the secretary for the purposes of the case in
question. Needless to say, the undersecretary should ask in such a way as to avoid any indication
that he has been dictated upon actually by the secretary.

#Footnotes

* Section 61 was further amended by Republic Act No. 4388, which took effect on
June 19, 1965 by changing the "court of competent jurisdiction" to "court of Appeals
or the Supreme Court, as the case may be", and by providing that findings of facts in
the decision or order of the Director of Mines, when affirmed by the Secretary od
Agriculture and Natural Resources shall be final and conclusive, and the aggrieved
party or parties desiring to appeal from such decision or order shall file in the
Supreme Court a petition for review wherein only 2 questions of law may be raised."

As to the existing procedure 'or review, see sections 3, 4 and 5 of Presidential

Decree No. 309. dated October 10, 1973 which establishes rules and procedures for
 the speedy disposition or settlement of conflicting mining claims; sections 48 to 50 of
the Mineral resources Development Decree of 1974, Presidential Decree No. 463,
dated May 17, 1974, regarding protests, adverse claims and appeals, involving the
right to possession, lease. exploration or exploitation of any mining claim, and
section 7 of Presidential Decree No. 1281, dated January 16, 1978, regarding review
of the decisions of the Director of Mines in cases involving mining agreements or
contracts.

SECOND DIVISION

[G.R. No. 122389. June 19, 1997]

MIGUEL SINGSON, petitioner, vs. NATIONAL LABOR RELATIONS

COMMISSION and PHILIPPINE AIRLINES, INC.
(PAL), respondents.

DECISION
PUNO, J.:

Assailed in the petition for certiorari before us is the Resolution of the public

respondent National Labor Relations Commission  (hereinafter NLRC) reversing the
[1]

Decision of the Labor Arbiter  in NLRC-NCR Case No. 00-10-05750-91 finding the
[2]

dismissal of petitioner Miguel Singson illegal and ordering his reinstatement. Petitioner

filed a motion for reconsideration which was denied by the public respondent in an
Order dated June 27, 1995.
The antecedent facts reveal that petitioner Singson was employed by private
respondent Philippine Airlines, Inc. (hereinafter PAL) as Traffic Representative
Passenger, Handling Division.His duty consisted of checking in passengers and
baggage for a particular flight. On June 7, 1991, petitioner was assigned to serve the
check-in counter of Japan Air Lines (hereinafter JAL) for Flight 742. Among the
passengers checked in by him was Ms. Lolita Kondo who was bound for Narita,
Japan. After checking in, Ms. Kondo lodged a complaint alleging that petitioner required
her to pay US $200.00 for alleged excess baggage without issuing any receipt. A
confrontation took place where petitioner was asked by the security officer to empty his
pockets. The dollars paid by Ms. Kondo were not found in his possession. However,
when the lower panel of the check-in counter he was manning was searched, the sum
of two hundred sixty five dollars (US $265) was found therein consisting of two (2) one
hundred dollar bills, one (1) fifty dollar bill, one (1) ten dollar bill and one (1) five dollar
bill. Petitioner was administratively charged and investigated by a committee formed by
private respondent PAL. [3]
 In an affidavit presented to the investigators, Ms. Kondo declared that she was with
three (3) Japanese friends when she checked in on June 7, 1991, for their flight to
Narita, Japan. While in line, a man approached her and told her that she had excess
baggage. She denied the allegation since the pieces of baggage did not only belong to
her but also to her Japanese companions. The man did not believe that the Japanese
were her companions and he charged that she just approached them at the airport. To
settle the matter, he told her to give him two hundred dollars (US $200) and he
apologized for their argument. She gave him one (1) one hundred dollar bill and two (2)
fifty dollar bills or a total of two hundred dollars (US $200) as excess baggage fee. She
placed the money at the side of his counter desk and he covered it with a piece of
paper. He did not issue a receipt. She then reported the matter to JAL's
representative.Ms. Kondo identified the employee who checked her in as the petitioner. [4]

In his affidavit, petitioner admitted that he was the one who checked in Ms. Kondo
and her Japanese companions. They checked in five (5) pieces of luggage which
weighed 80 kilos and within the allowed limit for check-in baggage. He attached the
claim checks to the jacket of their tickets, returned the tickets and passport to Ms.
Kondo. He then heard an altercation involving a woman passenger with excess hand-
carried baggage who was being charged for it; she was insisting she had paid for it in
the counter but could not produce a receipt. The passenger turned out to be Ms. Kondo
and she was accusing Cocoy Gabriel as the one who charged her for excess
baggage. Mr. Gabriel at that time was assigned at the THAI Airways counter, hence, it
was impossible that a passenger for a JAL flight would pay him US $200. Petitioner was
talking to the JAL's representative when two PAL employees and Ms. Kondo
approached them. He was told of Ms. Kondo's claim that she paid the excess baggage
fee to him. Petitioner was surprised at the accusation since Ms. Kondo had no excess
baggage when she checked in. [5]

The investigation committee found petitioner guilty of the offense charged and
recommended his dismissal. Private respondent PAL adopted the committee's
recommendation and dismissed him from the service effective June 7, 1991. [6]

On September 12, 1991, petitioner lodged a complaint against respondent PAL

before the NLRC-NCR for illegal dismissal, attorney's fees and damages. The case was
docketed as NLRC-NCR Case No. 00-10-05750-91 and raffled off to then Labor
Arbiter Raul T. Aquino. Aquino found the evidence adduced by private respondent
PAL in terminating petitioner's employment insufficient. Aquino declared petitioner's
dismissal illegal and ordered his reinstatement with backwages. Respondent PAL
appealed the decision of the Labor Arbiter. On May 19, 1995, the Second Division of
public respondent NLRC, composed of Commissioners Victoriano R. Calaycay, Rogelio
I. Rayala and Raul T. Aquino as presiding commissioner, promulgated its Resolution
reversing the decision of then Labor Arbiter Aquino and dismissing the complaint
against respondent PAL. Petitioner filed on June 5, 1995, a motion for the
reconsideration of the aforementioned Resolution and an Amended Motion for
Reconsideration on June 15, 1995. Public respondent NLRC, thru the Second
Division with only two commissioners taking part, namely, Commissioners Calaycay
and Rayala, denied the motion.
 Hence, this petition for certiorari under Rule 65 of the Rules of Court where
petitioner submits the following assignment of errors:

"I. Public respondent NLRC acted with grave abuse of discretion and/or in excess
of jurisdiction when the Hon. Raul T. Aquino, in his capacity as Presiding
Commissioner of the Second Division of the NLRC and as a member thereof,
participated actively in the promulgation of the aforesaid decision and in the
consultation of the members thereof in reaching the conclusion before it was
assigned to the ponente, Hon. Calaycay.

"II. Public respondent NLRC gravely abused its discretion as in fact it exceeded
its jurisdiction when it declared the affidavit of Lolita Kondo sufficient to declare
his dismissal from employment legal even without any cross-examination during
the investigation conducted by Philippine Air Lines.

"III. Public respondent NLRC seriously and gravely erred amounting to abuse of
discretion and/or in excess of its jurisdiction when it declared in the assailed
decision that the quantum of evidence necessary to justify the supreme penalty of
dismissal of the petitioner have been complied with, and in not imposing the
burden of proving the legality of the dismissal of the petitioner."

We find merit in this petition.

Petitioner assails the Resolution of the public respondent NLRC on account of
Commissioner Raul T. Aquino's participation in reviewing and reversing on appeal his
own decision as labor arbiter in NLRC-NCR Case No. 00-10-05750-91. Respondents
contend that Commissioner Aquino's failure to inhibit himself is a harmless error that will
not infirm the subject resolution.We do not agree. In the case of Ang Tibay v. Court of
Industrial Relations,  we laid down the requisites of procedural due process in
[7]

administrative proceedings, to wit: (1) the right to a hearing, which includes the right to
present one's case and submit evidence in support thereof; (2) the tribunal must
consider the evidence presented; (3) the decision must have something to support itself;
(4) the evidence must be substantial; (5) the decision must be based on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties
affected; (6) the tribunal or body or any of its judges must act on its own independent
consideration of the law and facts of the controversy, and not simply accept the views of
a subordinate; (7) the Board or body should, in all controversial questions, render its
decision in such manner that the parties to the proceeding can know the various issues
involved, and the reason for the decision rendered. In addition, administrative due
process includes (a) the right to notice, be it actual or constructive, of the institution of
the proceedings that may affect a person's legal right; (b) reasonable opportunity to
appear and defend his rights and to introduce witnesses and relevant evidence in his
favor; (c) a tribunal so constituted as to give him reasonable assurance of honesty
and impartiality, and one of competent jurisdiction; and (d) a finding or decision by that
tribunal supported by substantial evidence presented at the hearing or at least
ascertained in the records or disclosed to the parties.  It is self-evident from the ruling
[8]

case law that the officer who reviews a case on appeal should not be the same person
whose decision is the subject of review. Thus, we have ruled that "the reviewing officer
must perforce be other than the officer whose decision is under review." [9]

In the case at bar, we hold that petitioner was denied due process when
Commissioner Aquino participated, as presiding commissioner of the Second Division of
the NLRC, in reviewing private respondent PAL's appeal. He was reviewing his own
decision as a former labor arbiter. Under Rule VII, Section 2 (b) of the New Rules of
Procedure of the NLRC,  each Division shall consist of one member from the public
[10]

sector who shall act as the Presiding Commissioner and one member each from the
workers and employers sectors, respectively. The composition of the Division
guarantees equal representation and impartiality among its members. Thus, litigants are
entitled to a review of three (3) commissioners who are impartial right from the start of
the process of review. Commissioner Aquino can hardly be considered impartial since
he was the arbiter who decided the case under review. He should have inhibited himself
from any participation in this case.
Prescinding from this premise, the May 19, 1995 resolution of the respondent NLRC
is void for the Division that handed it down was not composed of three impartial
commissioners. The infirmity of the resolution was not cured by the fact that the motion
for reconsideration of the petitioner was denied by two commissioners and without the
participation of Commissioner Aquino. The right of petitioner to an impartial review of his
appeal starts from the time he filed his appeal. He is not only entitled to an impartial
tribunal in the resolution of his motion for reconsideration. Moreover, his right is to an
impartial review of three commissioners. The denial of petitioner's right to an
impartial review of his appeal is not an innocuous error. It negated his right to due
process.
IN VIEW WHEREOF, the Resolution of the Second Division of the NLRC dated May
19, 1995 and its Order dated June 27, 1995 in NLRC-NCR Case No. 00-10-05750-91 is
SET ASIDE.The case is remanded to the NLRC for further proceedings. No Costs.
SO ORDERED.
Regalado, (Chairman), Romero, and Torres, Jr., JJ., concur.
Mendoza, J., No part, Daughter is in PAL Management.

[1]
 Penned by Commisioner Victoriano R. Calaycay and concurred in by Presiding Commissioner Raul T.
Aquino and Commissioner Rogelio I. Rayala of the Second Division, and promulgated on May 19,
1995.
[2]
 Penned by then Labor Arbiter Raul T. Aquino.
[3]
 Rollo, pp. 26-27, 72, 155-157.
[4]
 Id.
[5]
 Id.
[6]
 Id., p. 74.
[7]
 69 Phil. 635 [1940].
[8]
 Air Manila, Inc. v. Balatbat, 38 SCRA 489 [1971].
[9]
 Zambales Chromite v. Court of Appeals, 94 SCRA 261 [1979]; Anzaldo v. Clave, 119 SCRA 353 [1982].
[10]
 Promulgated on August 31, 1990 and took effect on October 9, 1990.

EN BANC

[G.R. No. 127838. January 21, 1999]

CIVIL SERVICE COMMISSION, petitioner, vs. JOSE J. LUCAS, respondent.

DECISION
PARDO, J.:

The petition for review on certiorari before the Court assails the

decision of the Court of Appeals[1] which set aside the resolution of the Civil Service
Commission[2] and reinstated that of the Board of Personnel Inquiry (BOPI for brevity), Office of
the Secretary, Department of Agriculture,[3] suspending respondent for one month, for simple
misconduct.
To provide a factual backdrop of the case, a recital of the facts is necessary.
On May 26, 1992, Raquel P. Linatok, an assistant information officer at the Agricultural
Information Division, Department of Agriculture (DA for brevity), filed with the office of the
Secretary, DA, an affidavit-complaint against respondent Jose J. Lucas, a photographer of the
same agency, for misconduct.
Raquel described the incident in the following manner:

While standing before a mirror, near the office door of Jose J. Lucas, Raquel noticed a
chair at her right side which Mr. Jose Lucas, at that very instant used to sit
upon. Thereafter, Mr. Lucas bent to reach for his shoe. At that moment she felt Mr.
Lucas hand touching her thigh and running down his palm up to her ankle. She was
shocked and suddenly faced Mr. Lucas and admonished him not to do it again or she
will kick him. But Lucas touched her again and so she hit Mr. Lucas. Suddenly Mr.
Lucas shouted at her saying lumabas ka na at huwag na huwag ka nang papasok dito
kahit kailan A verbal exchange then ensued and respondent Lucas grabbed Raquel by
the arm and shoved her towards the door causing her to stumble, her both hands
protected her face from smashing upon the door.
Mr. Lucas, bent on literally throwing the affiant out of the office, grabbed her the
second time while she attempted to regain her posture after being pushed the first
time. x x x while doing all this, Mr. Lucas shouted at the affiant, saying, labas, huwag
ka nang papasok dito kahit kailan.[4]

On June 8, 1992, the Board of Personnel Inquiry, DA, issued a

summons requiring respondent to answer the complaint, not to file a motion to dismiss, within
five (5) days from receipt. On June 17, 1992, respondent Lucas submitted a letter to Jose P.
Nitullano, assistant head, BOPI, denying the charges. According to Lucas, he did not touch the
thigh of complainant Linatok, that what transpired was that he accidentally brushed Linatoks leg
when he reached for his shoes and that the same was merely accidental and he did not intend nor
was there malice when his hand got in contact with Linatoks leg.
On May 31, 1993, after a formal investigation by the BOPI, DA, the board issued a
resolution finding respondent guilty of simple misconduct[5] and recommending a penalty of
suspension for one (1) month and one (1) day. The Secretary of Agriculture approved the
recommendation.
In due time, respondent appealed the decision to the Civil Service Commission (CSC). On
July 7, 1994, the CSC issued a resolution finding respondent guilty of grave misconduct and
imposing on him the penalty of dismissal from the service. [6] Respondent moved for
reconsideration but the CSC denied the motion.
Then, respondent appealed to the Court of Appeals. On October 29, 1996, the Court of
Appeals promulgated its decision setting aside the resolution of the CSC and reinstating the
resolution of the BOPI, DA, stating thus: It is true that the Civil Service Act does not define
grave and simple misconduct. There is, however, no question that these offenses fall under
different categories. This is clear from a perusal of memorandum circular No. 49-89 dated
August 3, 1989 (also known as the guidelines in the application of penalties in administrative
cases) itself which classifies administrative offenses into three: grave, less grave and light
offenses. The charge of grave misconduct falls under the classification of grave offenses while
simple misconduct is classified as a less grave offense. The former is punishable by dismissal
while the latter is punishable either by suspension (one month and one day to six months), if it is
the first offense; or by dismissal, if it is the second. Thus, they should be treated as separate and
distinct offenses.[7]
The Court of Appeals further ruled that a basic requirement of due process on the other hand
is that a person must be duly informed of the charges against him (Felicito Sajonas vs. National
Labor Relations Commission, 183 SCRA 182). In the instant case however, Lucas came to know
of the modification of the charge against him only when he received notice of the resolution
dismissing him from the service.[8]
Hence, this petition.
The issues are (a) whether respondent Lucas was denied due process when the CSC found
him guilty of grave misconduct on a charge of simple misconduct, and (b) whether the act
complained of constitutes grave misconduct.
 Petitioner anchors its position on the view that the formal charge against a respondent in an
administrative case need not be drafted with the precision of an information in a criminal
prosecution. It is sufficient that he is apprised of the substance of the charge against him; what is
controlling is the allegation of the acts complained of, and not the designation of the offense.[9]
We deny the petition.
As well stated by the Court of Appeals, there is an existing guideline of the CSC
distinguishing simple and grave misconduct. In the case of Landrito vs. Civil Service
Commission, we held that in gravemisconduct as distinguished from simple misconduct, the
elements of corruption, clear intent to violate the law or flagrant disregard of established rule,
must be manifest,[10] which is obviously lacking in respondents case. Respondent maintains that
as he was charged with simple misconduct, the CSC deprived him of his right to due process by
convicting him of grave misconduct.
We sustain the ruling of the Court of Appeals[11] that: (a) a basic requirement of due process
is that a person must be duly informed of the charges against him [12] and that (b) a person can not
be convicted of a crime with which he was not charged.[13]
Administrative proceedings are not exempt from basic and fundamental procedural
principles, such as the right to due process in investigations and hearings.[14]
The right to substantive and procedural due process is applicable in administrative
proceedings.[15]
Of course, we do not in any way condone respondents act. Even in jest, he had no right to
touch complainants leg. However, under the circumstances, such act is not constitutive of grave
misconduct, in the absence of proof that respondent was maliciously motivated. We note that
respondent has been in the service for twenty (20) years and this is his first offense.
IN VIEW WHEREOF, the Court hereby DENIES the petition for review on certiorari and
AFFIRMS the decision of the Court of Appeals in CA-G. R. SP No. 37137.
No costs.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Martinez, Quisumbing, Purisima, Buena, and Gonzaga-Reyes, JJ., concur.

[1]
 CA-G.R SP No. 37137, promulgated on October 29, 1996, Rollo, pp. 26-34.
[2]
 Rollo, pp. 40-46, dismissing Jose J. Lucas from the service.
[3]
 Resolution, Board of Personnel Inquiry, Department of Agriculture, Rollo, pp. 51-63.
[4]
 Petition for Review, Rollo, pp. 12-25.
[5] 
Resolution, D.A. Case No. 92-309-6, Rollo, pp. 51-63.
[6]
 Resolution No. 94 3670, Civil Service Commission, Rollo, pp. 40-46.
  Court of Appeals, Decision, Justice Alfredo L. Benipayo, ponente, Justices Conrado M. Vasquez, Jr. and Romeo
[7]

A. Brawner, concurring , Rollo, pp. 26-31.

[8]
 Idem, on p. 32.
[9]
 Petition for Review, Rollo, p.18.
[10]
 Landrito vs. Civil Service Commission, 223 SCRA 564; see also Arcenio vs. Pogorogon, 224 SCRA 247.
[11]
 Decision, CA-G.R. No. SP No. 37137, Rollo, pp. 32-33.
[12]
 Felicito Sajonas vs. National Labor Relations Commission, 183 SCRA 182.
[13]
 Embuscado vs. People of the Philippines, 179 SCRA 589.
[14]
 Ang Tibay vs. CIR, 69 Phil. 635.
[15]
 Auyong Hian vs. Court of Tax Appeals, 59 SCRA 111; see also Asprec vs. Itchon, 16 SCRA 921.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 109113 January 25, 1995

CONCERNED OFFICIALS OF THE METROPOLITAN WATERWORKS AND SEWERAGE

SYSTEM (MWSS), petitioners, 
vs.
HON. OMBUDSMAN CONRADO M. VASQUEZ AND MEMBERS OF THE PHILIPPINE LARGE
DIAMETER PRESSURE PIPE MANUFACTURERS ASSOCIATION (PLDPPMA), respondents.

VITUG, J.:

The Ombudsman, in its 19th October 1992 Order,  directed the Board of Trustees of Metropolitan
1

Waterworks and Sewerage System ("MWSS") (a) to set aside the recommendation of its Pre-
qualification, Bids and Awards Committee for Construction Services and Technical Equipment
("PBAC-CSTE") that Contract No. APM-01 be given to a contractor offering fiberglass pipes and (b)
to instead award the contract to a complying and responsive bidder pursuant to the provisions of
Presidential Decree No. 1594.  The subsequent motion for reconsideration was denied by the
2

Ombudsman in its Order 01 March 1993.

These two Orders are now sought to be annulled in this petition for certiorari, with prayer for
preliminary injunction or a restraining order, lodged by the "Concerned Officials of the Metropolitan
Waterworks and Sewerage System"  led by its former Administrator Teofilo I. Asuncion. Let us first
3

touch on the factual backdrop.

In order to provide about 1.3 million liters of water daily to about 3.8 million people in the
metropolitan area,  MWSS launched the Angat Water Supply optimization ("AWSOP") consisting of
4
several phases. The entire project would be, in most part, financed by funds loaned by the Overseas
Economic Cooperation Fund ("OECF") of Japan to the national government and allocated to MWSS
in the form of equity.  With the completion of the construction of the main aqueduct from Angat Dam
5

all the way down to La Mesa Dam in Novaliches, Quezon City, from where water mains for the
distribution system of the entire Metro Manila begin, MWSS focused its attention to the Distribution
System Phase of the AWSOP. The projects were denominated Projects APM-01 and APM-02 which
consist of the construction of the Distribution System Phase of the AWSOP, that would particularly
call for the supply of labor, materials and equipment, and of the installation of new watermains
(43,305 linear meters for APM-01 and 31,491 linear meters for APM-02),  comprising of fittings,
6

valves and pipes of different sizes.  Under Clause IB-34 of the contract documents for APM-01 and
7

APM-02 the permitted alternative pipe materials for the projects were to include the following items:

Asbestos cement Pipe (ACP)
Cast Iron Pipe (CIP)
Polyethylene Pipe (PE)
Polyvinyl Chloride Pipe (DIP)
Steel Pipe (SP)
Fiberglass Pressure Pipe (FPP)
(millimeters)
— 100 mm to 600 mm
— 50 and larger
— 50 mm to 250 mm
— 50 mm and larger
— 400 mm and larger
— 300 mm and larger 8

On 30 August 1991, MWSS caused the publication in two (2) leading newspapers of an "Invitation
for Pre-qualification and Bids" for Projects were opened for international competitive bidding, copies
of the "Invitation for pre-qualification and Bids" were sent to the respective embassies and trade
missions of member countries of the OECF. The advertisement and invitation to prospective bidders
announced that "(g)oods and services to be supplied under (the) contract must have their origin from
countries defined in the Guidelines for Procurement of Goods under OECF loans" and that "(j)oint
ventures between foreign and domestic firms as encouraged." While there were twenty-five (25)
prospective applicants who secured pre-qualification documents, only fourteen (14) contractors
submitted corresponding applications to the PBAC-CSTE.

On 20 November 1991, the PBAC-CSTE, after evaluating the applications for pre-qualification,
issued a report concluding that only eleven (11)   out of the fourteen (14) contractors were pre-
9 10

qualified to bid for the 31st March 1992 scheduled bidding covering both the APM-01 and APM-02
proposed contracts. The major factors considered in the evaluation were the applicants' financial
condition, technical qualifications and experience to undertake the project under bid.

Meanwhile, private respondent Philippine Large Diameter pressure Pipes Manufacturers'

Association ("PLDPPMA"),   sent seven (7) letters, between 13 January and 23 March 1992, to the
11

MWSS requesting clarification, as well as offering some suggestions, on the technical specifications
for APM-01 and APM-02.

The first letter, dated 13 January 1992,   sought clarification on the design criteria of thickness used
12

for fiberglass and ductile iron pipes which varied from the standard thickness given by
manufacturers.

The second letter, dated 29 January 1992,   suggested that all alternative pipes for Projects APM-01
13

and APM-02 should have the same design criteria on stiffness class, pressure class, rating, elevated
temperature and wall thickness and should be manufactured in accordance with American water
Works Association ("AWWA") standards.
 PLDPPMA, in its third letter of 13 February 1992,   sought to be elaborated on the imposition of the
14

testing procedure of stiffness factor on steel pipes used in Fiberglass Reinforced Pipes ("FRP") and
suggested that the 5-year minimum experience by manufacturers be required for alternative pipes.

In its fourth letter, dated 25 February 1992,   PLDPPMA reiterated their request that the deflection
15

allowance of 3% under the AWWA standards on steel pipes be also applied to all alternative pipes
and suggested that a comparative study should be undertaken by the MWSS on the feasibility of
using filament wound fiberglass pipes ("FRP") and centrifugally cast fiberglass pipes ("GRP").

In their fifth letter, dated 05 March 1992,   PLDPPMA appealed to the MWSS to have steel pipes
16

placed in equal footing with other alternative pipes, specifically filament wound and centrifugally cast
fiberglass pipes, in order to avoid an unfair requirement on stiffness value.

In their penultimate letter of 16 March 1992,   PLDPPMA informed MWSS of their computation for
17

wall thickness and stiffness values for cement lined/cement coated and epoxy lined/coal tar enamel
coated steel pipes based on AWWA standards.

Finally, in their seventh letter of 23 march 1992,   PLDPPMA reiterated their request for correcting
18

the specifications for steel and fiberglass pipes, particularly on wall thickness and deflections,
because of MWSS Addendum #5 where the wall thickness for steel pipes were noted to be more
than the wall thickness computed in the previously agreed agenda.

Former Administrator Luis Sison issued, between 10 February and 24 March 1992, six
(6) addenda to the bidding documents that embodied the meritorious suggestions of PLDPPMA on
various technical specifications. In his 24th March 1992 letter to the PLDPPMA, in response to the
latter's 23rd march 1992 (seventh) letter, Sison explained that the additional thickness for steel pipes
was so required in order to serve as a pipe corrosion allowance to counter imperfection in the
preparation and application of lining and coating, the limit service life of epoxy resin lining and the
corrosive element of the local soil.

The bidding was conducted by PBAC on the previously scheduled date of 31 March 1992. The
prequalified bidders using steel and fiberglass pipes submitted their respective bid proposals. The
approved agency cost estimate for Project APM-01 was Three Hundred Sixty Six Million Six
Hundred Fifty Thousand Pesos (P366,650,000,00).   The Three (3) lowest bidders for the said
19

project (APM-01) were the following:

BIDDER BID PRICE

1 DYWIDAG/TITAN/WILPER
PLDPPMA/GREEN JADE (Joint Venture) P267,345,574.00
2 F.F. CRUZ & CO., INC. P268,815,729.00
3 J.V. ANGELES CONST. CORP./JA
DEVT. CORP. P278,205,457.00 20

while the three lowest bidders for Project APM-02 included:

BIDDER BID PRICE

1 ENG'G. EQUIPMENT, INC. (EEI) P219,574,538.00
2 FF CRUZ & CO., INC. P233,533,537.00
3 J.V ANGELES CONST. CORP./JA
DEVT. CORP. P277,304,604.00 21

In APM-01, Joint Venture and F.F. Cruz and Co., Inc. proposed to use fiberglass pipes. In APM-02,
Eng'g. Equipment Inc. and F.F. Cruz likewise preferred to use fiberglass pipes.

After the three lowest bidders for both projects were known, a meeting was held on 27 May 1992 by
the PBAC-CSTE, composed of MWSS Deputy Administrator for Engineering Eduardo M. del Fierro,
as Acting Chairman, and deputy Administrator for Operations Ruben A. Hernandez, Acting Chief of
Legal office Precioso E. Remolacio, and Project Manager Cesar S. Guevarra, as members, to
decide on what should be done about Contract APM-01. Three of the members, namely, Hernandez,
Guevarra and Asuncion, recommended for the contract on the following grounds:

a. Ambiguity of Addendum No. 6 — The Addendum is subject to different

interpretations because there was no illustrations provided. Further, it could also be
said that some contractors did not use the FRP because said Addendum was not
clearly explained.

b. There was no provision for maintenance/repair materials for bidders who opted to
use FRP which is relatively new pipe to be used in the country. It was suggested that
a 5% to 10% allowance be provided for maintenance purposes.

c. Further review of pipe design should be made by the Consultant (NJS) in order to
accommodate the load to be carried in the Umiray-Angat Loop.  22

Precioso E. Remolacio abstained; he felt that "technical evaluation (was) more essential in deciding
the issues in (the) Contract." For his part, Acting Chairman Eduardo M. del Fierro recommended that
no rebidding should be undertaken and that an award should be made to either the lowest or the
second lowest bidder.

On 29 May 1992, PBAC-CSTE met again to discuss and evaluate the bids in APM-02. Here again,
three members, namely, Guevarra, Hernandez and Asuncion, opined that a rebidding should be
conducted, while Acting Chairman del Fierro and Remolacio believed that the contract should be
awarded to the lowest bidder.

Finally, on 02 June 1992, the PBAC-CSTE formally submitted its report   on its bid evaluation on
23

APM-01. The PBAC-CSTE held that while Joint Venture's bid might have been the lowest it was,
however, invalid due to its failure to acknowledge Addendum No. 6, a major consideration, that could
not be waived. It accordingly recommended that the contract be instead awarded to the second
lowest but complying bidder, F.F. Cruz & Co., Inc., subject to the latter's manifestation that it would
only hire key personnel with experience in the installation of fiberglass pressure pipes (due to PBAC-
CSTE's observation in the report that the company and its key personnel did not have previous
experience in the installation of fiberglass reinforced pipes). Acting Chairman del Fierro, together
with members Guevarra and Asuncion, approved the PBAC-CSTE's findings and recommendation.
Hernandez and Remolacio both disagreed with the findings of the PBAC-CSTE; the former opted for
a rebidding while the latter batted for awarding the contract to Joint Venture.

On the following day, or on 03 June 1992, the MWSS Board Committee on Construction
Management and the Board Committee on Engineering, acting jointly on the recommendation of
Administrator Sison, recommended that Contract No. APM-01 be awarded to F.F. Cruz & Co., Inc.,
being the lowest complying bidder.  24
Prior thereto, or on 07 April 1992 (seven days after the submission of the bid proposals on 31 March
1992), private respondent PLDPPMA, through its President Ramon Pastor, filed with the Office of
the Ombudsman a letter-complaint   (docketed Case No. OMB-0-92-0750) protesting the public
25

bidding conducted by the MWSS for Projects APM-01 and APM-02, detailing charges of an
"apparent plan" on the part of the MWSS to favor suppliers of fiberglass pipes, and urging the
Ombudsman to conduct an investigation thereon and to hold in abeyance the award of the contracts.
PLDPPMA's letter-complaint, in part, read:

Even before the bidding had started, there appears to be an apparent plan on the
part of the MWSS to favor a particular supplier of pipes for the project considering
the following events:

Firstly, the bid documents particularly the specifications for alternative pipes when
first released in December 1991 whimsically and arbitrarily set such rigid standards
for steel pipes so that MWSS had to issue six addenda to the bidding documents and
had to postpone the bidding several times in a vain attempt to correct the apparent
prejudice against the use of steel pipes for the APM 01 and 02 projects;

Secondly, despite our prior agreement with MWSS Engineering Department that the
alternative pipes to be used for the project should comply with internationally
accepted AWWA specifications was written arbitrarily and in complete disregard of
AWWA specifications increased by 1 mm. the thickness required for steel pipes
thereby effectively increasing the cost of steel pipes for the APM 01 project bid by
about P30 Million, or more than twice the difference between the lowest bid and the
bid that utilized steel pipes;

Thirdly, despite the fact that it was/is of common knowledge that FRP and GRP
(Fiberglass) pipes have had a long history of failures in the United States such that
even MWSS Pre-qualification, Bidding and Awards Committee resolved in a meeting
held in March 1992 not to use FRP and GRP pipes for large projects, bids utilizing
such pipes were still accepted for the FRP and GRP pipes for large projects, bids
utilizing such pipes were still accepted for the APM 01 and 02 projects; and

Lastly, the undue preference for the use of GRP pipes became more apparent when
the supposed lowest bidder for the APM 01 project (who did not participate in the
bidding for APM 02 project), and the supposed lowest bidder for the APM 02 project
(who also did not participate in the bidding for APM 01 project), both submitted bids
utilizing GRP pipes.

On 10 June 1992, the Ombudsman referred PLDPPMA's 07th April 1992 letter-complaint to the
MWSS Board of Trustees for comment along with a directive to it to hold in abeyance the awarding
of the subject contract.   MWSS asked for an extension of time within which to submit its comment
26

but called, at the same time, the attention of the Ombudsman to Presidential Decree No.
1818   prohibiting the issuance of restraining orders/injunctions in cases involving government
27

infrastructure projects.

After the submission by the parties of their respective pleadings, the case was referred to the Fact-
Finding and Intelligence Bureau of the Office of the Ombudsman for Investigation and report   was
28

submitted to, and approved by, the Ombudsman which became the basis for the issuance of the
now challenged order, dated 19 October 1992,   reading as follows:
29
 In view of the findings of this Office on the above-entitled case as contained in the
Fact-Finding Report, dated September 14, 1992, of the Fact Finding Investigation
Bureau (copy attached), and pursuant to the Powers, Functions and Duties of the
Office of the Ombudsman as mandated under Section 15 of Republic Act 6770
(Ombudsman Act), the MWSS Board of Trustees in hereby directed to:

1) Set aside the recommendation of the MWSS Pre-qualification, Bids

and Awards Committee for Construction Services and Technical
Equipment (PBAC-CSTE) to award Contract APM-01 to a contractor
offering fiberglass pipes;

2) Award the subject contract to a complying and responsive bidder

pursuant to the provisions of PD 1594, Prescribing Policies,
Guidelines, Rules and Regulations for Government Infrastructure
Contracts.

The Board of Trustees is further directed to inform this Office of the

action taken thereon.

SO ORDERED.

A motion by herein petitioners for the reconsideration of the order was denied on 01 March 1993.  30

Petitioners cite to us the following reasons for its petition for certiorari.

RESPONDENT OMBUDSMAN ACTED BEYOND THE COMPETENCE OF HIS

OFFICE WHEN HE ASSUMED JURISDICTION OVER THE COMPLAINT AT BAR
NOTWITHSTANDING THAT THE SAME IS CLEARLY AMONG THE CASES
EXCEPTED BY SECTION 20 OF THE OMBUDSMAN ACT OF 1989 (RA NO. 6770)
WHICH ENUMERATED THE ADMINISTRATIVE ACT OR OMISSION THAT MAY
NOT BE THE SUBJECT OF INVESTIGATION BY HIS OFFICE.

II

RESPONDENT OMBUDSMAN, AFTER HAVING TAKEN COGNIZANCE OF THE

COMPLAINT, ARBITRARILY ISSUED A DIRECTIVE IN THE NATURE OF A
RESTRAINING ORDER OR WRIT OF PRELIMINARY INJUNCTION TO
PETITIONERS "TO HOLD IN ABEYANCE THE AWARDING OF THE CONTRACT . .
. UNTIL FURTHER ORDER FROM THIS OFFICE," A POWER OR AUTHORITY
NOT VESTED IN HIS OFFICE.

III

RESPONDENT OMBUDSMAN ACTED WITHOUT JURISDICTION IN ISSUING THE

ORDER OF OCTOBER 1993, CONSIDERING THAT UNDER THE LAW THE
OMBUDSMAN'S JURISDICTION CANNOT AND SHOULD NOT BE EXPANDED TO
INCLUDE THE DECISION MAKING POWER OVER A CIVIL ADJUDICATORY
MATTER SUCH AS THE MWSS BIDDING PROCESS.
 IV

RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF LAW, AND

ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION, BY ARBITRARILY AND CAPRICIOUSLY INTERPRETING WITH
THE EXERCISE OF SOUND DISCRETION BY THE MWSS WHICH IS A
SPECIALIZED AGENCY OF GOVERNMENT WITH WHICH EVEN COURTS OF
JUSTICE GENERALLY DO NOT INTERFERE TO ISSUE THE ORDERS.

RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF LAW, AND

ACTED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF
JURISDICTION, IN ISSUING THE SUBJECT ORDERS IN GROSS DISREGARD OF
THE CARDINAL PRINCIPLES OF DUE PROCEEDINGS, ASSUMING ARGUENDO
THAT HE HAS JURISDICTION TO ISSUE SAID ORDERS.

VI

RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF LAW, AND

ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION, IN GROSSLY MISAPPREHENDING THE RECORD BY FAILING
TO TAKE INTO ACCOUNT THE FINDINGS OF EXPERTS THAT THE MWSS
SPECIFICATIONS ARE FAIR, AND BY CONCLUDING BASELESSLY THAT MWSS
FORMULATED ITS SPECIFICATIONS TO FAVOR FIBERGLASS PIPES OVER
STEEL PIPES, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE
THE SUBJECT ORDERS.

VII

RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF LAW, AND

ACTED ARBITRARILY AND CAPRICIOUSLY, IN IMPLYING BASELESSLY THAT
MWSS ACTED UNFAIRLY, OPPRESSIVELY AND WITH GRAVE ABUSE OF
DISCRETION, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE
THE SUBJECT ORDERS.

VIII

IN CONSEQUENCE, THE ORDERS OF OCTOBER 19, 1992 AND MARCH 1, 1993

MUST BE REVERSED, ANNULLED AND SET ASIDE.  31

After the required pleadings were filed by the parties, this Court, in its resolution of 19 May 1994
gave due course to the petition and required the parties to submit memoranda. In compliance
therewith, the parties filed their respective memoranda, petitioners (MWSS) on 07 July 1994, the
Solicitor-General on 28 June 1994, and PLDPPMA on 19 July 1994. Petitioners opposed Titan's
intervention. This Court, ultimately, denied the motion for leave to intervene.

The various alleged errors raised by petitioners can be grouped into two basic issues, i.e., (a)
whether or not the rudiments of due process have been properly observed in the issuance of the
assailed 19th October 1992 and 01st march 1993 orders of the Ombudsman; and, more pivotal that
the first, (b) whether or not the Ombudsman has jurisdiction to take cognizance of PLDPPMA's
complaint and to correspondingly issue its challenged orders directing the Board of Trustees of the
MWSS to set aside the recommendation of the PBAC-CSTE.

Relative to the first issue, we are more than convinced, after a scrutiny of the records of this case,
that petitioners have been amply accorded the opportunity to be heard.

Petitioners were asked to comment on the letter-complaint of PLDPPMA. On 25 June 1992,

petitioners moved for an extension of time within which to comment. On July 16, 1992, petitioners
filed their letter-comment. Responding to the reply of PLDPPMA, petitioners later filed a rejoinder.
When an adverse order was rendered against them, petitioners moved for its
reconsideration, albeit to no avail.

The absence of due process is an opportunity to be heard.   One may be heard, not solely by verbal
32

presentation but also, and perhaps even many times more creditably and practicable than oral
argument, through pleadings.   In administrative proceedings, moreover, technical rules of
33

procedure and evidence are not strictly applied; administrative due process cannot be fully equated
to due process in its strict judicial sense.

On the threshold matter that puts to issue the Ombudsman's directive to the Board of Trustees of
MWSS to set aside the recommendation of the PBAC — CSTE to award Contract No. APM-01 to
the lowest complying bid, we find, this time, the petition to be impressed with merit.

Petitioners maintain that while Republic Act ("R.A.") No. 6770, otherwise known as the Ombudsman
Act of 1989, extends certain well-defined powers and authority to the Office of the Ombudsman to,
among other functions, investigate and prosecute complaints filed therewith, the same law, however,
expresses limits to the exercise of such jurisdictional power and authority. Section 20 of the Act is
cited; viz:

Sec. 20. Exceptions. — The Office of the Ombudsman may not conduct the
necessary investigation of any administrative act or omission complained of if it
believes that:

(1) The Complainant has an adequate remedy in another judicial or

quasi-judicial body;

(2) The complaint pertains to a matter outside the jurisdiction of the

Office of the Ombudsman;

(3) The complaint is trivial, frivolous interest in the subject matter of

the grievance; or

(4) The complaint is trivial, frivolous, vexations or made in bad in bad

faith;

(5) The complaint was filed after one year from the occurrence of the
act or omission complained of.

Petitioners contend that PLDPPMA's complaint falls under exceptions (1) to (4) of Sec. 20 of R.A.
No. 6770, and that, therefore, the Ombudsman should not have taken cognizance of the complaint.
Asserting, upon the other hand, that the Ombudsman has jurisdiction over PLDPPMA's complaint,
the Solicitor-General enumerations various constitutional and statutory provisions; to wit:

(a) Section 13, Article XI of the 1987 Constitution providing thusly:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions
and duties:

(1) Investigate on its own, or on complaint by any person, any act or

omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties.

(3) Direct, the officer concerned to take appropriate action against a

public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith

(4) Direct the officer concerned, in any appropriate case, and subject
to such limitations as may be provided by law, to furnish it with copies
of documents relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or properties,
and report any irregularity to the Commission of Audit for appropriate
action.

(5) Request any government agency for assistance and information

necessary in the discharge of its responsibilities, and to examine, if
necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances

so warrant and with due prudence.

(7) determine the causes of inefficiency, red tape, mismanagement,

fraud, and corruption in the Government and make recommendations
for their elimination and the observance of high standards of ethics
and efficiency.

(8) Promulgate its rule of procure and exercise such other powers or
perform such functions or duties as may be provided by law.

(b) Section 13 of republic Act No. 6770 which reads:

Sec. 13. Mandate. — The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against officers
or employees of the Government, or of any subdivision, agency or instrumentality
 thereof, including government-owned or controlled corporations, enforce their
administrative, civil and criminal liability in every case where the evidence warrants in
order to promote efficient service by the Government to the to the people.

(c) Section 15, paragraphs (1) to (7), of republic Act No. 6770 which reproduced verbatim the
aforequoted provisions of Section 13 of the 1987 Constitution with some additional salient statutory
provisions; hence:

Sec. 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have
the following powers, functions and duties:

xxx xxx xxx

(8) Administer oaths, issue subpoena and subpoena duces tecum, and take

testimony in any investigation or inquiry, including the power to examine and have
access to bank accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the same
penalties provided therein;

(10) delegate to the Deputies, or its investigators or representatives such authority or

duty as shall ensure the effective exercise or performance of the powers, functions
and duties herein or hereinafter provided;

(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after February 25, 1986 and the prosecution of the
parties involved therein;

The Ombudsman shall give priority to complaints filed against high ranking
government officials and/or those occupying supervisory positions, complaints
involving grave offenses as well as complaints involving large sums of money and/or
properties.

(d) And, finally, Section 26 of the Ombudsman Act which expresses, as follows:

Sec. 26. Inquiries. — The Office of the Ombudsman shall inquire into acts or
omissions of the public officer, employee, office or agency which, from the reports or
complaints it has received the Ombudsman or his Deputies consider to be:

(a) contrary to law or regulation;

(b) unreasonable, unfair, oppresive, irregular or inconsistent with the

general course of the operations and functions of a public officer,
employee, office or agency;

(c) an error in the application or interpretation of law, rules or

regulations, or a gross or palpable error in the appreciation of facts;

(d) based on improper motives or corrupt considerations;

 (e) unclear or inadequately explained when reasons should have
been revealed; or

(f) inefficiently performed or otherwise objectionable.

2. The Office of the Ombudsman shall receive complaints from any source in
whatever form concerning an official act or omission. It shall act on the complaint
immediately and if it finds the same entirely baseless, it shall dismiss the same and
inform the complainant of such dismissal citing the reasons therefor. If it finds a
reasonable ground to investigate further, it shall first furnish the respondent public
officer or employee with a summary of the complaint and require him to submit a
written answer within seventy-two hours from receipt thereof. If the answer is found
satisfactory, it shall dismiss the case.

3. When the complaint consists in delay or refusal to perform a duty required by law,
or when urgent action is necessary to protect or preserve the rights of the
Ombudsman shall take steps or measures and issue such orders directing the
officer, employee, office or agency concerned to:

(a) expedite the performance of duty;

(b) cease or desist from the performance of a prejudicial act;

(c) correct the omission;

(d) explain fully the administrative act in question; or

(e) take any steps as may be necessary under the circumstances to

protect and preserve the rights of the complainant.

4. Any delay or refusal to comply with the referral or directive of the Ombudsman or
any of his Deputies shall constitute a ground for administrative disciplinary action
against the officer or employee to whom it was rendered.

On the basis of all the foregoing provisions of law, the Solicitor-General insists that the authority of
the Ombudsman is sufficiently broad enough to cloth it with sufficient power to look into the alleged
irregularities in the bidding conducted on 31 March 1992 leading to the recommendation made by
the PBAC-CSTE on contract APM-01. He argues that even if no criminal act could be attributed to
the former MWSS Administrator and members of the PBAC-CSTE, the questioned report could still
be embraced in the all-encompassing phrase "all kinds of malfeasance, misfeasance, and non-
feasance," and falls within the scope of the constitutional provision calling for an investigation of "any
act or omission of any public official, employee, office or agency, when such act or omission appears
to be illegal, unjust, improper, or inefficient."

Indeed, in Deloso v. Domingo,   this Court had occasion to explain not only the rationale for the
35

creation of an office of the Ombudsman but also the grant to it of broad investigative authority, thus:

The reason for the creation of the Ombudsman in the 1987 Constitution and for the
grant to it of broad investigative authority, is to insulate said office from the long
tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and
others involved in the prosecution of erring public officials, and through the exertion
 of official pressure and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public officers. It was deemed
necessary, therefore, to create a special office to investigate all criminal complaints
against public officers regardless of whether or not the acts or omissions complained
of are related to or arise from the performance of the duties of their office. The
Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman
encompasses "all kinds of malfeasance, misfeasance, and non-feasance that have
been committed by any officer or employee as mentioned in Section 13 hereof,
during his tenure of office."

To begin with, the owners, functions and duties of the Ombudsman have generally been categorized
into the following headings: Investigatory Power; Prosecutory Power; Public Assistance Functions;
Authority to Inquire and Obtain Information; and Function to Adopt, Institute and Implement
Preventive Measures.

Although the Solicitor-General has practically enumerated all the constitutional and statutory
provisions describing the ample authority and responsibilities of the Ombudsman, the particular
aspect of his functions that, however, really finds relevance to the present case relates to his
investigatory power and public assistance duties which can be found in the first and second
paragraphs, respectively, of Section 13, Article XI, of the Constitution, along with the corresponding
provisions of the Ombudsman Act. This much can be gleaned from the findings of the Office of the
Ombudsman leading to its questioned orders. We quote:

a. There is an evident on the part of the MWSS under then Administrator Sison to
favor suppliers of fiberglass when it prescribed rigid standards for steel pipes but set
lenient requirements for pipes made of fiberglass, for the following reasons:

1. MWSS management rely on the AWWA standards for fiberglass

pipe but neglect the same AWWA standards for steel pipes. The
MWSS management under Administrator Sison disregarded the
AWWA specifications by increasing 1mm thickness for steel pipes.

2. Complainant sent seven letters to the MWSS questioning and

making suggestions of the rules of the bidding it set but only one was
answered by Administrator Sison dated and received (by the
complainant) after the bidding.

3. The MWSS' original specification for stiffness of fiberglass (36 psi)

was [c]hanged to 54 psi (pounds per square inch) in its Addendum
No. 1 as a result of the complaints of the PLDPPMA members. But in
its Addendum No. 4, the MWSS reverted to the original stiffness class
of 36 psi. In the letter-comment dated July 26, 1992 of the MWSS,
thru Acting Administrator Teofilo I. Asuncion, the MWSS tried to
mislead this office by stating that the stiffness class of fiberglass
pipes was increased from 36 psi to 54 psi when in truth, as appearing
in its Addendum No. 4, the MWSS reverted to the original stiffness
class of 36 psi. there is nothing in the subsequent Addenda (Nos. 5
and 6) that will show that the MWSS finally settled for the stiffness
class of 54 psi.

4. The MWSS failed to prescribe specific pipe laying procedure for

fiberglass pipes. Contrary to the claim of the MWSS that pipes is not
 a complicated procedure as it is similar with other types of pipes, the
installation of fiberglass pipes seems to be a critical factor in the
successful implementation of a project as shown in the findings of
experts, attached by the MWSS in its motion, and quoted as follows: .
..

5. The MWSS failed to include in the Specifications a provision for the

maintenance/repair materials for bidders who opted to use fiberglass
pipes. The importance of a provision for repair of fiberglass pipes can
be inferred in the findings of experts cited by the MWSS and quoted
as follows: . . .

6. The MWSS tried to limit the acceptable joints for fiberglass pipes
favorable to a fiberglass manufacturer by issuing Addendum No. 6
which was undated. The provision of Addendum No. 6 "The only
acceptable joints are gasketted bell and Spigot and Mechanical Type"
appears to be vague and ambiguous as it cannot be determined
clearly whether the bidders will be using the Mechanical Type of
Joint. As stated in the Report, the cost of the Bell and Spigot Joint is
cheaper than the cost of mechanical Type Joint. Moreover, it was
only June 1, 1992 or two (2) months after the bidding that the MWSS
issued clarification to the effect that fiberglass pipes bidders can use
either the Bell and Spigot type or Mechanical type.

7. In connection with Addendum No. 6, this office recently got hold of

a copy of a letter dated January 31, 1992 (found on Folder I, records)
of Joseph Albanese, Gruppo Sarplast, Milan, Italy
(Manufacturer/Supplier of fiberglass pipes for F.F. Cruz & Co. Inc.),
addressed to Felipe Cruz. The letter was officially stamped/received
by the Office of the MWSS Administrator on February 12, 1992. It
also has a veriño From: Mr. F.F. Cruz." The pertinent portion of the
letter in the light of Addendum No. 6 is quoted as follows:

8. Conclusion "During the pre-bid meeting our friends should stay:

our Spec TS-23 is a general one, but for this case only the pipes
produced with discontinuing filament winding will be accepted and
only bell and spigot joint."

The existence of such a letter in such a situation can only mean that
F.F. Cruz and Sarplast, Italy had previous communications with the
top officials of the MWSS even before the opening of the bids on
march 31, 1992. Clearly, the issuance of Addendum No. 6 would only
fit well for F.F. Cruz Co., Inc. and Sarplast who is proposing the use
of discontinuous filament winding fiberglass pipe with bell and Spigot
joint.

b. MWSS has no experience and sufficient knowledge on the use of fiberglass pipes.

c. The Contractors who proposed to use fiberglass pipes have no tract record or
experience in the installation of the same. Thus, they are not qualified to undertake
projects pursuant to the provisions of PD 1594 and under the guidelines of the
Overseas Economic Cooperation Fund.
 d. The would-be manufacturers of fiberglass pipes has no manufacturing plant at this
stage and there is no guarantee whether such manufacturing plants will be
operational.

e. There is no assurance that the manufacturers of fiberglass would be able to

produce the kind of pipe desired.  36

In sum, the Office of the Ombudsman has considered three issues: (1) whether or not the technical
specifications prescribed by the MWSS in projects APM 01 and 02 have been so designed as to
really favor Fiberglass Pipes-Contractors/Bidders; (2) whether or not the MWSS has the technical
knowledge and expertise with fiberglass pipes; and (3) whether or not the contractors and local
manufacturers of fiberglass pipes; and (3) whether or not the contractors and local manufacturers of
fiberglass pipes have the experience and qualification to undertake the APM-01 and APM-02
projects.

While the broad authority of the Ombudsman to investigate any act or omission which ". . . appears
illegal, unjust, improper, or inefficient" may be yielded, it is difficult to equally concede, however, that
the Constitution and the Ombudsman Act have intended to likewise confer upon it veto or revisory
power over an exercise of judgment or discretion by an agency or officer upon whom that judgment
or discretion is lawfully vested. It would seem to us that the Office of the Ombudsman, in issuing the
challenged orders, has not only directly assumed jurisdiction over, but likewise pre-empted the
exercise of discretion by, the Board of Trustees of MWSS. Indeed, the recommendation of the
PBAC-CSTE to award Contract APM-01 appears to be yet pending consideration and action by the
MWSS Board of Trustees.

We can only view the assailed 19th October 1992 Order to be more of an undue interference in the
adjudicative responsibility of the MWSS Board of Trustees rather than a mere directive requiring the
proper observance of and compliance with law. The report submitted by the Fact-Finding and
Intelligence Bureau of the Office of the Ombudsman reveals its predisposition against the use of
fiberglass pipes, a technical, rather than a legal, matter. The fact-finding report has dealt with such
matters as (1) the wall thickness of pipes; (2) the joints; (3) the pipe laying procedure; (4) the
technical expertise of the MWSS, on the one hand, and the fiberglass proponements, on the other;
and (5) the supposed negative international feedback on the use of fiberglass pipes.

The question could be asked: Was the 31st March 1992 bidding really that faulty? During the
bidding, the people present were the PBAC members, a COA representative, the bidders and the
general public. The eleven (11) prequalified contractors, according to the prequalification
evaluation   of the PBAC, possessed the required experience, technical qualification and financial
37

condition to undertake the project. It should not be amiss to mention that the PBAC, under the
implementing rules and regulations of P.D. No. 1594,   was tasked with the responsibility "for the
38

conduct of prequalification, bidding, evaluation of bids and recommending award of contracts." In

evaluating the bids, PBAC stated in its report that it had examined the three lowest bids. Part of
PBAC's review was to verify whether the proposed pipe materials were in conformity with the
permitted alternative materials specified in Clause IB-34 of the bid document.   In thereafter
39

recommending that the award be made to F.F. Cruz, Inc., instead of Joint venture, PBAC explained:

As presented above, evaluation of the bid results touches on a number of

parameters to determine whether the bids are "substantially responsive to the
bidding documents and has offered the lowest evaluated bid, and that the bidder has
the capacity and resources to effectively carry out the Contract Works." The
evaluation was conducted as fairly and accurately as possible to come up with a
recommendation that satisfies the interest of the MWSS which in the final analysis,
 shall bear the consequences if the contract is not fully performed. Conclusions of the
important issues are hereunder presented.

A. Establishing the validity of the Bid of the Lowest Bidder

The deficiencies with respect to the bidding requirements enumerated in Section

4.2.1, page 4 were discussed to wit:

a) Authority of the Signing Official

b) Acknowledgment of Addenda received

c) Currency Exchange Rate

After the discussion, the PBAC agreed that the deficiencies on the a) authority of the
signing official and the c) currency exchange rate may be waived as they do not
affect the validity of the bid. PBAC believes that the authority given to Fernando M.
Sopot by the Consortium in the Joint Venture Agreement substantially complies with
Clause IB-20-7 of the Contract Documents. On the currency exchange rate, in the
absence of BF-14, the MWSS may provide the exchange rate.

With regard to the acknowledgment of Addendum No. 6, which is a material provision

of the documents, it is ascertained that the Joint Venture has not made allowance for
the provision of said Addenda. The Joint Venture indicated in the bid, as originally
submitted, the acknowledgment of Addenda #1 to #5 only. The alteration made
during the bidding acknowledging Addendum #6 was done after the 12 noon
deadline of submittal of bids and, hence, cannot be entertained. Moreover, the
person who made the alteration is also not authorized to make such alteration and
affix his signature to the bid.

It is therefore, the position of the PBAC that the deficiency in the acknowledgment of
Addendum No. 6 is a major defect and cannot be waived as it affects the validity of
the bid of the Consortium. The bid has to be rejected as non-complying.

The lowest complying becomes the bid submitted by the second lowest Bidder, F.F.
CRUZ, & CO., INC. as discussed above. 40

PBAC was evidently guided by the rule that bids should be evaluated based on the required
documents submitted before, and not after, the opening of bids,   that should further dispel any
41

indiscriminate or whimsical exercise of discretion on its part.

The MWSS, a government-owned and controlled corporation created by law through R.A. No.
6234,   is charged with the construction, maintenance and operation of waterwork system to insure
42

an uninterrupted and adequate supply and distribution of potable water.   It is the agency that should
43

be in the best position to evaluate the feasibility of the projections of the bidders and to decide which
bid is compatible with its development plans. The exercise of this discretion is a policy decision that
necessitates among other things, prior inquiry, investigation, comparison, evaluation, and
deliberation — matters that can best be discharged by it.   MWSS has passed resolution No. 32-
44

93   to likewise show its approval of the technical specifications for fiberglass. All these should
45

deserve weight.
In Razon Inc. v. PPA,   we have said that neither this Court nor Congress, and now perhaps the
46

Ombudsman, could be expected to have the time and technical expertise to look into matters of this
nature. While we cannot go so far as to say that MWSS would have the monopoly of technical know-
how in the waterworks system, by the very nature of its functions, however, it obviously must enjoy
an advantage over other agencies on the subject at hand. In Felipe Ysmael, Jr. & Co. Inc. vs. deputy
Executive Secretary,   citing numerous 
47

cases,   this Court has held:

48

Thus, while the administration grapples with the complex and multifarious problems
caused by unbridled exploitation of these resources, the judiciary will stand clear. A
long line of cases establish the basic rule that the courts will not interfere in matters
which are addressed to the sound discretion of government agencies entrusted with
the regulation of activities coming under the special technical knowledge and training
of such agencies.

It stands to reason for, in Bureau Veritas v. Office of the President,   we have further observed:
49

The discretion to accept or reject a bid and award contracts is vested in the
Government agencies entrusted with that function. The discretion given to the
authorities on this matter is of such wide latitude that the Courts will not interfere
therewith, unless it is apparent that it is used as a shield to a fraudulent award.

All considered, it is our view that the issue here involved, dealing, such as they do, on basically
technical matters, dealing, such as they do, on basically technical matters, deserve to be
disentangled from undue interference from courts and so from the Ombudsman as well.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
Puno, Kapunan and Mendoza, JJ., concur.

Francisco, J., took no part.

Footnotes

1 Case No. OMB-0-92-0750, entitled "Members of the Philippine Large Diameter

Pressure Pipes Manufacturers Association (PLDPPMA) v. Concerned Officials of the
Metropolitan Waterworks and Sewerage Systems (MWSS).

2 Entitled "Prescribing Policies, Guidelines, Rules and Regulations for Government

Infrastructure Contracts."

3 Petitioners have identified themselves as "Concerned Officials of the Metropolitan

Waterworks and Sewerage System" because that is how they were so designated in
the complaint before the Ombudsman. PLDPPMA maintains that the complaint is
against the MWSS officials concerned with the bidding. It was primarily directed
against then Administrator Teofilo Asuncion's predecessor, former MWSS
Administrator Luis Sison.

4 Rollo, p. 10
 5 Rollo, p. 86.

6 Rollo, p. 86.

7 Rollo, p. 70.

8 Rollo, p. 86.

9 Annex "A", Comment of Private Respondent, Rollo, pp. 297-302.

1. PREQUALIFIED APPLICANTS

CONTRACTOR REMARKS
1. PHESCO, Inc. Bid on both but award is limited to
one contract
2. China estate Const. & Eng'g. Corp. Eligible for award of two contracts
3. FF Cruz & Co., Inc. Bid and award of two contracts
4. Kurimoto Ltd. Eligible for award of two contracts
5. DM Consunji Eligible for award of two contracts
6. Eng'g. Equipment Inc. Bid on both but award is limited to
one contract
7. SAMWHAN CORP. Eligible for award of two contracts
8. DYWIDAG/TITAN Const./Wilfer Const./Alpha Tierra Mgmt. Eligible for award of two contracts
Corp./Consortium
9. Philippine Golden M (Nanjing Hua TaIi Eng'g. Eligible for award of two contracts
Ltd./Shanghai Baogung Metallurgical Const. Corp.
/Phil. Valve Mfg. Corp./MMRR Const./Golden City Eng'g.
Corp. Joint Venture)
10. J.V. Angeles Const. Corp./JA Dev. Corp. Bid on both but award is limited to
one contract only
11. C.M. Pancho Const., Inc./MIESCOR/JE& Co. Consortium. Bid and award on both contracts
(Rollo, p. 310)

11 The members of the association include the International Pipe Industries

Corporation, Italit Asbestos Cement Corporation, Mayer Steel Pipe Corporation,
Goodyear Steel Pipe Corporation and City Industrial Corporation. (Rollo, p. 308)

12 Rollo, pp. 307-308.

13 Rollo, pp. 309-312.

14 Rollo, pp. 313-314.

15 Rollo, p. 88.

16 Rollo, pp. 318-319.

17 Rollo, pp. 320-321.

18 Rollo, p. 322.

19 Rollo, p. 425.

20 Rollo, p. 262.

21 Rollo, p. 262.

22 Rollo, p. 478.

23 Rollo, pp. 421-436.

24 Rollo, 417-420.

25 Rollo, pp. 406-407.

26 Rollo, p. 69.

27 Entitled "Prohibiting Courts from Issuing Restraining Orders or Preliminary

Injunctions in Cases Involving Infrastructure and Natural Resource Development
Projects of, and Public utilities Operated By, the Government."

28 Rollo, pp. 84-113.

29 Rollo, p. 83

30 Rollo, pp. 226-239.

31 Rollo, pp. 722-725.

32 Crespo v. Provincial Board of Nueva Ecija, 160 SCRA 66.

33 Mutuc v. Court of Appeals, 190 SCRA 43.

34 Asiaworld Publishing House, Inc. v. Ople, 152 SCRA 219; Manuel v. Villena, 37
SCRA 745.

35 191 SCRA 545, 550-551.

36 Rollo, pp. 752-756.

37 Rollo, pp. 299-301.

38 IB 2.1.

39 Asbestos Cement Pipe (ACP)

Cast Iron Pipe (CIP)

 Polyethylene Pipe (PE)

Polyvinyl Chloride Pipe (PVC)

Ductile Iron Pipe (DIP)

Steel Pipe (SP)

Fiberglass pressure Pipe (FPP)

40 Rollo, pp. 432-433.

41 Republic v. Capulong, 199 SCRA 134.

42 67 O.G. no. 40, pp. 7866-7875.

43 Sections 1 and 3 (f), R.A. No. 6234.

44 See Bureau Veritas v. Office of the President, 205 SCRA 705.

45 Rollo, p. 240.

46 151 SCRA 233.

47 190 SCRA 673.

48 Lianga bay Logging Co., Inc. vs. Enage, 152 SCRA 80; Lacuesta vs. Herrera, 62
SCRA 116; Manuel vs. Villena, 37 SCRA 745; Villegas vs. Auditor General, 18 SCRA
877; Ganito vs. Secretary of Agriculture and Natural resources, 16 SCRA 543;
Suarez vs. Reyes, 7 SCRA 461; Pajo vs. Ago, 108 Phil. 905; Coloso vs. Board of
Accountancy, 92 Phil. 938; Espinosa vs. Makalintal, 79 Phil. 134.

49 Supra., note 37.

EN BANC

[G.R. No. 144464. November 27, 2001]

GILDA G. CRUZ and ZENAIDA C. PAITIM, petitioner, vs. THE CIVIL

SERVICE COMMISSION, respondent.

DECISION
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. D3-95-052, 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.) Della A. Amilhasan
Director IV[1]

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 Norzagary , 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:
I

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.[6] It reads:

Sec. 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.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

[1]
 Rollo, p. 19.
[2]
 Id., at 26-27.
[3]
 Id., at 50.
[4]
 Id.,, at 39.
[5]
 Id., at 6-7
[6]
 Id.., at 96.
[7]
 Id., at 11.
[8]
 Golden Thread Knitting Industries, Inc. v. NLRC, 305 SCRA 327 (1999).
[9]
 Id., at 38-39.
 Republic of the Philippines
Supreme Court
Manila
 
 
SECOND DIVISION

 
THERON V. LACSON, G.R. Nos. 165399 and 165475

Petitioner,

- versus -

THE HON. EXECUTIVE

SECRETARY, THE
PRESIDENTIAL ANTI-GRAFT
COMMISSION, PUBLIC
ESTATES AUTHORITY, and
TEODORICO C. TAGUINOD, in
his capacity as General Manager
and Chief Executive Officer of the
Public Estates Authority,

Respondents.

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

JAIME R. MILLAN and

BERNARDO T. VIRAY,
 Petitioners,

- versus - G.R. Nos. 165404 and 165489

THE HON. EXECUTIVE Present:

SECRETARY, THE
PRESIDENTIAL ANTI-GRAFT
COMMISSION, and the PUBLIC
ESTATES AUTHORITY, CARPIO, J., Chairperson,

Respondents. BRION,*

ABAD,

MENDOZA, and

SERENO,* JJ.

Promulgated:

May 30, 2011

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

 
DECISION
 

MENDOZA, J.:
 
  

These are consolidated petitions for review on certiorari under Rule 45

seeking to set aside the June 8, 2004 Decision and the September 20, 2004
Resolution of the Court of Appeals (CA) in CA-G.R. SP No. 78749 and CA-G.R.
SP No.78290.[1]

 
The Facts
 
Petitioners Theron V. Lacson (Lacson), Jaime R. Millan (Millan) and
Bernardo T. Viray (Viray) were non-presidential appointees and career service
officials of respondent Philippine Estates Authority (PEA), holding the positions of
Deputy General Manager for Finance, Legal and Administration; Assistant General
Manager; and Department General Manager, respectively.[2]
 
On October 3, 2002, Sulficio O. Tagud (Tagud) filed a complaint-affidavit
with the Office of the Ombudsman (Ombudsman) accusing petitioners Lacson,
Millan and Viray for overpricing, by P600,000,000.00, the contract for the
construction of the Central Boulevard Project (the Project), otherwise known as
the President Diosdado Macapagal Boulevard.[3]
 
Acting on the complaint, the Ombudsman proceeded with the investigation
of both the criminal and the administrative aspects of the case. [4] The criminal case,
docketed as OMB-C-C-02-0667-J and entitled Sulficio O. Tagud Jr., et al. v.
Ernesto Villareal, et al., charged petitioners for committing an act in violation of
Republic Act (R.A.) No. 7080. The administrative case, docketed as OMB-C-A-02-
0523-K, on the other hand, charged them with Dishonesty, Serious Misconduct and
Acts Inimical to the Interest of the Public Service in violation of Section 52A (1),
(3) and (20) of the Uniform Rules on Administrative Cases.[5]
 
Meanwhile, on October 14, 2002, the Presidential Anti-Graft
Commission (PAGC) requested the Ombudsman for authority to conduct
administrative disciplinary proceedings against the petitioners and other
individuals involved in the Project.[6]
 
In its Letter-Reply dated October 17, 2002,[7] the Ombudsman responded in the
following manner:
 
This has reference to your letter dated 14 October 2002 requesting for
authority to conduct administrative disciplinary proceedings against the
presidential appointees at the Public Estates Authority (PEA) named
respondents in the case involving the construction of the President
Diosdado Macapagal Boulevard (PDMB). It is our humble view that the
authority is not necessary.
 
The Office takes the opportunity to confirm the fact that the case filed with
this Office on 3 October 2002, involving the subject controversy, is
criminal in nature. It now bears the docket number OMB-C-C-02-0667-J,
entitled Sulficio Tagud, Jr., et al. versus Ernest Villareal, et al. The basic
complaint has not been further docketed as an administrative
case.Thus, the same did not preclude the subsequent filing with
the PAGC of an administrative complaint against the concerned
PEA officials. [Emphasis supplied]
 
 
Subsequently, on November 12, 2002, a formal complaint was filed by the
Investigation Office of PAGC charging several employees of PEA, including
petitioners, with acts and/or omissions contrary to: (1) Item 1B2 of the
Implementing Rules and Regulations (IRR) of Presidential Decree (P.D.) No.
1594, as amended; (2) Section 3(i), (g) and (e) of R.A. No. 3019, as amended; (3)
Article 217 of the Revised Penal Code in relation to R.A. No. 3019, as amended;
(4) Articles 8.1 and 8.2 of the Construction Agreement signed on April 10, 2000
between PEA and J.D. Legaspi Construction; and (5) Section 46 (a) and (b) of
Executive Order (E.O.) No. 292, as amended, in particular Item (B), Nos. 3, 4 and
27, in relation to R.A. No. 3019, as amended.[8]
 
On the same date, PAGC issued an order requiring petitioners to file their counter-
affidavit/verified answer (not a motion to dismiss or motion for bill of particulars)
within a non-extendible period of 10 days from receipt of the order. Preliminary
conference was set on November 22, 2002.[9]
 
During the preliminary conference, petitioners raised several jurisdictional
issues, particularly the following: the absence of certification of non-forum
shopping in the complaint; the primary jurisdiction of the Ombudsman to
investigate them; the lack of jurisdiction of PAGC over the complaint against them
considering that they were not presidential appointees and there was no allegation
that they had conspired with the presidential appointees who were charged with
them; the futility of any investigation by PAGC as the same would have no bearing
on the case filed with the Ombudsman; and the fatally defective complaint which
was not based on personal knowledge of the complainant who, as an officer of
PAGC, was merely a nominal party and was never privy to the project subject of
the investigation.[10]
 
PAGC directed petitioners to file their memoranda to formalize their
arguments.[11]
 
On November 28, 2002, PAGC issued a resolution recommending the
dismissal of petitioners from PEA with the imposition of the corresponding
accessory penalties of forfeiture of retirement benefits and disqualification from
employment in the government.[12]
 
In a letter dated December 16, 2002, the Office of the President, through the
Executive Secretary, informed the PEA Chairman and Members of the Board that
the President approved the recommendation of PAGC in its November 28, 2002
Resolution dismissing the petitioners from PEA and imposing upon them the
accessory penalties of forfeiture of retirement benefits and disqualification from
employment in the government service, and directed them to take the necessary
actions to effect the instructions of the President. [13]
 
On December 18, 2002, petitioners received a notice dated December 4,
2002 informing them that PAGC had resolved their case and that the records
therein had been forwarded to the Office of the President. It also advised the
petitioners that any inquiry relative thereto should be addressed to the said office.
[14]

 
After securing a copy of the PAGC Resolution, petitioners Millan and Viray,
together with Manuel R. Beria, Jr. (Beria) filed a motion for
reconsideration[15] dated January 2, 2003 with the Office of the President assailing
the November 28, 2002 Resolution and Recommendation of the PAGC.
 
This motion was not acted upon.[16]
  
On July 25, 2003, PEA dismissed the petitioners. They received their copies
of the notice of dismissal on July 28, 2003.[17]
 
 
Aggrieved, Beria, Millan and Viray filed their Petition for Certiorari and
Prohibition under Rule 65 with the CA on July 30, 2003, which was docketed as
CA G.R. SP No. 78290.[18]
 
Lacson, on the other hand, filed a motion for reconsideration of the dismissal
order  in a letter dated August 11, 2003 addressed to Teodorico C.
[19]

Taguinod (Taguinod),PEA General Manager and Chief Executive Officer. This

motion, however, was denied on August 20, 2003.[20]
 
On August 25, 2003, Ernesto L. Enriquez (Enriquez) and Lacson filed a
petition for certiorari and prohibition under Rule 65 with the CA, which was
docketed as CA G.R. SP No. 78749.[21] Said petition, however, was later
consolidated with CA G.R. SP No. 78290 upon motion of the Office of the
Solicitor General (OSG). But, before the consolidation of the mentioned petitions,
writs of preliminary injunction were issued. [22] The writs, dated August 6, 2003 in
CA G.R. SP No. 78290 and September 16, 2003 in CA G.R. SP No. 78749,
temporarily enjoined the respondents from implementing the dismissal orders.[23]
 
Finally, in a consolidated decision dated June 29, 2004, the CA dismissed the
consolidated petitions.[24]
 
On July 5, 2004 and July 22, 2004, Lacson in CA-G.R. SP No. 78749 and
Beria, Millan and Viray in CA-G.R. SP No. 78290, filed their respective motions
for reconsideration.[25] Unfortunately for petitioners, both motions were denied in a
resolution dated September 20, 2004.[26]
 
Hence, these petitions.
 
Upon motion of the OSG, on behalf of respondents Executive Secretary and
PAGC, the Court issued a resolution ordering the consolidation of the petitions in
G.R. Nos. 165404 and 165489 with the petitions in G.R. Nos. 165399 and 165475.
[27]

ISSUES
 
In their respective petitions for review, petitioners assigned the following
errors, to wit:
 
I.
 
RESPONDENTS ERRED WHEN THEY ISSUED THE QUESTIONED
MEMORANDA AND ORDERED THE DISMISSAL OF PETITIONERS
ALLEGEDLY ON THE BASIS OF THE RECOMMENDATION OF THE
RESPONDENT PAGC, IN THAT:
 
A. UNDER THE CONSTITUTION AND THE LAWS APPLICABLE, IT IS
THE OMBUDSMAN WHICH HAS THE JURISDICTION TO INVESTIGATE
AND RECOMMEND THE DISMISSAL OF CAREER SERVICE OFFICERS
SUCH AS PETITIONERS HEREIN.
 
B. IT IS THE OMBUDSMAN WHO HAS PRIMARY JURISDICTION OVER
THE INVESTIGATION AND REMOVAL OF PETITIONERS AND NOT
RESPONDENT PAGC.
 
C. EXECUTIVE ORDER NO. 12, SERIES OF 2002, WHICH GRANTS
RESPONDENT PAGC THE AUTHORITY TO INVESTIGATE AND
RECOMMEND THE DISMISSAL OF PUBLIC OFFICERS AND
EMPLOYEES WITHIN THE CIVIL SERVICE WHO ARE NON-
PRESIDENTIAL APPOINTEES AS PETITIONERS HEREIN IS
UNCONSTITUTIONAL AND INVALID FOR BEING CONTRARY TO LAW.
 
D. THE DIRECT ACTION OF RESPONDENTS IN DISMISSING THE
PETITIONERS FROM THE SERVICE WITHOUT THE HEAD OF
RESPONDENT PEA HAVING CONDUCTED ANY INVESTIGATION AT
ALL IS CONTRARY TO LAW.
 
II.
 
RESPONDENTS ERRED IN DISMISSING THE PETITIONERS FROM
RESPONDENT PEA AND PUBLIC OFFICE IN THAT:
 
A. PETITIONERS DISMISSAL WAS VIOLATIVE OF THEIR RIGHT TO
DUE PROCESS OF LAW, PETITIONERS HAVING BEEN DEPRIVED OF A
FORMAL INVESTIGATION WHICH THEY ARE ENTITLED TO UNDER
THE RULES OF PROCEDURE OF THE OMBUDSMAN AND THE
UNIFORM RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE.
  
B. THE PETITIONERS DISMISSAL WAS VIOLATIVE OF THEIR RIGHT TO
SECURITY OF TENURE AS THEY WERE TERMINATED FROM SERVICE
UPON A MERE PRESIDENTIAL DIRECTIVE.
 
III.
 
RESPONDENTS ENGAGED IN PROHIBITED FORUM SHOPPING BY THE
FILING OF MULTIPLE ADMINISTRATIVE COMPLAINTS AGAINST
PETITIONERS FOR THE SAME CAUSE; HENCE, THE INSTANT CHARGE
AGAINST PETITIONERS SHOULD BE DISMISSED.[28]
 
 
These alleged errors in G.R. Nos. 165399 and 165475 and G.R. Nos. 165404
and 165489 can be categorized into two principal issues:
 
(1) Whether it is the Ombudsman who should conduct the
investigation on the charge of overpricing of the Project against
petitioners; and
 
(2) Whether the Court can still review the dismissal ordered by PEA.
 
 
THE COURTS RULING
The Ombudsman has concurrent
jurisdiction with similarly
authorized agencies
 
 
Petitioners argue that because they are not presidential appointees, it is only
the Ombudsman which has jurisdiction over them.
 
 
 
In this regard, the petitioners are not correct. The Court has repeatedly ruled
that the power of the Ombudsman to investigate offenses involving public officials
is not exclusive, but is concurrent with other similarly authorized agencies of the
government in relation to the offense charged. [29] Therefore, with respect to
petitioners, the Ombudsman may share its authority to conduct an investigation
concerning administrative charges against them with other agencies.
  
At any rate, this issue is already moot and academic as the Ombudsman has
terminated its investigation of petitioners. This can be gleaned from the certified
true copies of the Ombudsmans May 30, 2008 Decision as well as the July 3, 2008
Review and Recommendation which the petitioners submitted in compliance with
the November 22, 2010 Resolution requiring them to inform the Court of the status
of their cases before the Ombudsman. It appears therefrom that the Ombudsman
dismissed the administrative case against the petitioners because the charges had
already been passed upon by PAGC.[30]
 
Having been dismissed by PEA,
petitioners should have appealed
to the Civil Service Commission
 
 
Despite the claim of petitioners that the decision to dismiss them was upon
orders of the President or upon undue pressure exerted by the Office of the
President to implement the PAGC recommendations, still the undeniable fact is
that the dismissal of petitioners was actually made and effected by PEA.
 
 
Granting that PEA committed an error, whether substantial or procedural,
petitioners should have appealed to the Civil Service Commission (CSC), pursuant
to Section 47, Chapter 6, Title I, Book V of E.O. No. 292 (The Administrative
Code of 1987), to wit:
 
(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 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.
 
(2) The Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities shall have jurisdiction to investigate
and decide matters involving disciplinary action against officers and
 employees under their jurisdiction. Their decisions shall be final in case
the penalty imposed is suspension for not more than thirty days or fine in
an amount not exceeding thirty days' salary. In case the decision rendered
by a bureau or office head is appealable to the Commission, the same may
be initially appealed to the department and finally to the Commission and
pending appeal, the same shall be executory except when the penalty is
removal, in which case the same shall be executory only after confirmation
by the Secretary concerned.[Emphasis Supplied]
 
It is only after appealing the case to the CSC that it can be elevated to the
CA via a petition for review under Rule 43 of the Rules of Court. From there, said
case can be appealed to the Court through a petition for review on certiorari under
Rule 45.
 
Unfortunately, petitioners chose the wrong remedy. Instead of appealing
their dismissal by the PEA to the CSC, they chose to question it before the CA.
 
For their failure to appeal to the proper forum, the decision of the PEA
dismissing them has become final and executory. It should be emphasized that the
right to appeal is a statutory right and the party who seeks to avail himself of the
same must comply with the requirements of the law. Failure to do so, the right to
appeal is lost.[31]
As petitioners dismissal has become final and executory, the Court no longer
has the power to review and act on the matter.
 
There was no violation of
petitioners right to due process
and security of tenure
 
 
Even granting that this Court can still review the PEA action to terminate the
petitioners, they have not shown that their right to due process and security of
tenure was violated.
 
Petitioners argue that they were denied due process because their order of
dismissal was not accompanied by any justification from the PEA Board of
Directors who merely relied on the findings of PAGC.
 
 This argument, however, deserves scant consideration.
 
As conversely pointed out by respondents, petitioners cannot claim that their
dismissal was unattended by the requisite due process because they were given the
opportunity to be heard in the course of PAGCs investigation.
 
Indeed, as career service officers, the petitioners enjoy security of tenure as
guaranteed under the 1987 Constitution.[32] This is further reiterated in Section
36(a) of P.D. No. 807, otherwise known as the Civil Service Decree of
the Philippines, which clearly provides that no officer or employee in the Civil
Service shall be suspended or dismissed except for cause as provided by law and
after due process.
 
The tenurial protection accorded to a civil servant is a guaranty of both
procedural and substantive due process. Procedural due process requires that the
dismissal, when warranted, be effected only after notice and hearing. On the other
hand, substantive due process requires, among others, that the dismissal be for
legal cause, which must relate to and effect the administration of the office of
which the concerned employee is a member of and must be restricted to something
of a substantial nature directly affecting the rights and interests of the public.[33]
 
Nevertheless, the right to security of tenure is not tantamount to immunity
from dismissal. Petitioners cannot seek absolute protection from this constitutional
provision. As long as their dismissal is for a legal cause and the requirements of
due process were met, the law will not prevent their removal from office.
 
Per records of the case, the exercise of disciplinary action against petitioners
was justified because (1) they committed acts punishable under the anti-graft laws;
and (2) their conduct was prejudicial to the best interest of the service. [34] Thus,
their removal from office was for a legal cause.
 
Anent the alleged failure of respondents to observe due process, well-
established is the rule that the essence of due process in administrative proceedings
is the opportunity to explain ones side or seek a reconsideration of the action or
ruling complained of, and to submit any evidence he may have in support of his
defense.[35] The demands of due process are sufficiently met when the parties are
given the opportunity to be heard before judgment is rendered.[36] In the landmark
case of Ang Tibay v. Court of Industrial Relations,[37] this Court laid down the
cardinal and primary rights to be observed and respected in administrative
proceedings:
 
(1) The right to a hearing which includes the right of the party interested
or affected to present his own case and submit evidence in support
thereof;
 
(2) The tribunal must consider the evidence presented;
 
(3) The decision must have some evidence to support a finding or
conclusion;
 
(4) The evidence must be substantial (that is, such relevant evidence as a
reasonable mind accepts as adequate to support a conclusion);
 
(5) The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected;
 
(6) The tribunal must act on its own independent consideration of the law
and facts of the controversy, and not simply accept the view of a
subordinate in arriving at a decision; and
 
(7) The tribunal should, in all controversial questions, render its decision
in such a manner that the parties to the proceeding can know the
various issues involved and the reasons for the decisions rendered.
[38]

 
In this regard, petitioners actively participated in the proceedings before
PAGC where they were afforded the opportunity to explain their actions through
their memoranda.The essence of due process is the right to be heard and this
evidently was afforded to them. Thus, petitioners assertion that their dismissal was
unattended by the requisite due process cannot be sustained.
 
In sum, the removal from office of petitioners was valid. PEA dismissed
them for cause and in accordance with the requisites of due process. Petitioners, as
PEA officers and employees, are under the disciplining authority of the PEA
Board, pursuant to Section 11 of P.D. No. 1084, the Charter of the Public Estates
Authority,[39] which states that:
 
 Section 11. Appointment, control and discipline of personnel. The Board,
upon recommendation of the General Manager of the Authority,
shall appoint the officers and employees of the Authority and its
subsidiaries; fix their compensation, allowances and benefits, their
working hours and such other conditions of employment as it may deem
proper; grant them leaves of absence under such regulations as it may
promulgate; discipline and/or remove them for cause; and establish and
maintain a recruitment and merit system for the Authority and its
affiliates and subsidiaries. (Emphases supplied)
 
At any rate, as earlier stated, as the petitioners did not appeal the decision of
the PEA to dismiss them to the CSC, it has become final and executory and the
Court can no longer review it.
 
WHEREFORE, the petitions are DENIED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

 
 
 
 
 
 ANTONIO T. CARPIO

Associate Justice

Chairperson

ARTURO D. BRION ROBERTO A. ABAD

Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO
 Associate Justice

ATTESTATION
 

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

CERTIFICATION
 

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA

Chief Justice

*
 Designated as additional members in lieu of Associate Justices Antonio Eduardo B. Nachura and Diosdado M.
Peralta, per Raffle dated May 6, 2011.
 
[1]
 Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Mariano C.
del Castillo (now a member of this Court) and Edgardo F. Sundiam.
[2]
 Rollo (G.R. Nos. 165404 and 165489), pp. 39-40.
[3]
 Id. at 42.
[4]
 Id.
[5]
 Id. at 42 and 44.
[6]
 Id. at 42 and 148.
[7]
 Id. at 148.
[8]
 Id. at 149.
[9]
 Id. at 158.
[10]
 Id. at 43-44.
[11]
 Id. at 44.
[12]
 Id. at 142.
[13]
 Id. at 102.
[14]
 Id. at 45.
[15]
 Id. at 178.
[16]
 Id. at 605.
[17]
 Id. at 145-147; rollo (G.R. Nos. 165399 and 165475), pp. 144 and 147.
[18]
 Rollo (G.R. Nos. 165404 and 165489), p. 201.
[19]
 Rollo (G.R. Nos. 165399 and 165475), p. 256.
[20]
 Id. at 228.
[21]
 Id. at 112.
[22]
 Rollo (G.R. Nos. 165404 and 165489), p. 48.
[23]
 Id.
[24]
 Id. at 37.
[25]
 Id. at 239; rollo (G.R. Nos. 165399 and 165475), p. 302.
[26]
 Rollo (G.R. Nos. 165404 and 165489), p. 61.
[27]
 Rollo (G.R. Nos. 165399 and 165475), p. 540.
[28]
 Rollo (G.R. Nos. 165404 and 165489), pp. 12-13; rollo (G.R. Nos. 165399 and 165475), pp. 26-28.
[29]
 Honasan v. Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, April 13, 2004,
427 SCRA 46, 65 citing Cojuangco, Jr. v. Presidential Commission on Good Government, G.R. Nos. 92319-20,
October 2, 1990, 190 SCRA 226, 240; Sanchez v. Demetriou, G.R. Nos. 111771-77, November 9, 1993, 227 SCRA
627, and Aguinaldo v. Domagas, G.R. No. 98452, September 26, 1991.
[30]
 Rollo (G.R. Nos. 165399 and 165475), p. 1028.
[31]
 Acena v. Civil Service Commission, G.R. No. 90780, February 6, 1991, 193 SCRA 623, 629, citing Ozaeta v.
Court of Appeals, 259 Phil. 428 (1989).
[32]
 Article IX-B, Sec. 2, par. 3.
[33]
 Tria v. Sto. Tomas, G.R. No. 85670, July 31, 1991, 199 SCRA 833, 843-844 citing Reyes v. Subido, 160 Phil. 891
(1975) and De los Santos v. Mallare, 87 Phil. 293 (1950).
[34]
 P.D. No. 807, Civil Service Decree of the Philippines, Sec. 36(b)(9) and (27).
[35]
 Larin v. Executive Secretary, 345 Phil. 962, 977 (1997), citing Midas Touch Food Corp. v. NLRC, 382 Phil. 1033
(1996).
[36]
 Medina v. Commission on Audit, G.R. No. 176478, February 4, 2008, 543 SCRA 684, 696, citing Montemayor v.
Bundalian, 453 Phil. 158, 165 (2003).
[37]
 69 Phil. 635 (1940).
[38]
 Id. at 642-644.
[39]
 February 4, 1977.

FIRST DIVISION

G.R. No. 147096            January 15, 2002

REPUBLIC OF THE PHILIPPINES, represented by NATIONAL TELECOMMUNICATIONS

COMMISSION, petitioner, 
vs.
EXPRESS TELECOMMUNICATION CO., INC. and BAYAN TELECOMMUNICATIONS CO.,
INC., respondents.

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

G.R. No. 147210            January 15, 2002

BAYAN TELECOMMUNICATIONS (Bayantel), INC., petitioner, 

vs.
EXPRESS TELECOMMUNICATION CO., INC. (Extelcom), respondent.

YNARES-SANTIAGO, J.:

On December 29, 1992, International Communications Corporation (now Bayan

Telecommunications, Inc. or Bayantel) filed an application with the National Telecommunications
Commission (NTC) for a Certificate of Public Convenience or Necessity (CPCN) to install, operate
and maintain a digital Cellular Mobile Telephone System/Service (CMTS) with prayer for a
Provisional Authority (PA). The application was docketed as NTC Case No. 92-486. 1

Shortly thereafter, or on January 22, 1993, the NTC issued Memorandum Circular No. 4-1-93
directing all interested applicants for nationwide or regional CMTS to file their respective applications
before the Commission on or before February 15, 1993, and deferring the acceptance of any
application filed after said date until further orders. 2
On May 6, 1993, and prior to the issuance of any notice of hearing by the NTC with respect to
Bayantel's original application, Bayantel filed an urgent ex-parte motion to admit an amended
application. On May 17, 1993, the notice of hearing issued by the NTC with respect to this amended
3 

application was published in the Manila Chronicle. Copies of the application as well as the notice of
hearing were mailed to all affected parties. Subsequently, hearings were conducted on the amended
application. But before Bayantel could complete the presentation of its evidence, the NTC issued an
Order dated December 19, 1993 stating:

In view of the recent grant of two (2) separate Provisional Authorities in favor of ISLACOM
and GMCR, Inc., which resulted in the closing out of all available frequencies for the service
being applied for by herein applicant, and in order that this case may not remain pending for
an indefinite period of time, AS PRAYED FOR, let this case be, as it is, hereby ordered
ARCHIVED without prejudice to its reinstatement if and when the requisite frequency
becomes available.

SO ORDERED. 4

On June 18, 1998, the NTC issued Memorandum Circular No. 5-6-98 re-allocating five (5)
megahertz (MHz) of the radio frequency spectrum for the expansion of CMTS networks. The re-
allocated 5 MHz were taken from the following bands: 1730-1732.5 / 1825-1827.5 MHz and 1732.5-
1735 / 1827.5-1830 MHz. 5

Likewise, on March 23, 1999, Memorandum Circular No. 3-3-99 was issued by the NTC re-allocating
an additional five (5) MHz frequencies for CMTS service, namely: 1735-1737.5 / 1830-1832.5 MHz;
1737.5-1740 / 1832.5-1835 MHz; 1740-1742.5 / 1835-1837.5 MHz; and 1742.5-1745 / 1837.5-1840
MHz. 6

On May 17, 1999, Bayantel filed an Ex-Parte Motion to Revive Case, citing the availability of new
7 

frequency bands for CMTS operators, as provided for under Memorandum Circular No. 3-3-99.

On February 1, 2000, the NTC granted BayanTel's motion to revive the latter's application and set
the case for hearings on February 9, 10, 15, 17 and 22, 2000. The NTC noted that the application
8 

was ordered archived without prejudice to its reinstatement if and when the requisite frequency shall
become available.

Respondent Express Telecommunication Co., Inc. (Extelcom) filed in NTC Case No. 92-486 an
Opposition (With Motion to Dismiss) praying for the dismissal of Bayantel's application. Extelcom 9 

argued that Bayantel's motion sought the revival of an archived application filed almost eight (8)
years ago. Thus, the documentary evidence and the allegations of respondent Bayantel in this
application are all outdated and should no longer be used as basis of the necessity for the proposed
CMTS service. Moreover, Extelcom alleged that there was no public need for the service applied for
by Bayantel as the present five CMTS operators --- Extelcom, Globe Telecom, Inc., Smart
Communication, Inc., Pilipino Telephone Corporation, and Isla Communication Corporation, Inc. ---
more than adequately addressed the market demand, and all are in the process of enhancing and
expanding their respective networks based on recent technological developments.  1âwphi1.nêt

Extelcom likewise contended that there were no available radio frequencies that could accommodate
a new CMTS operator as the frequency bands allocated in NTC Memorandum Circular No. 3-3-99
were intended for and had in fact been applied for by the existing CMTS operators. The NTC, in its
Memorandum Circular No. 4-1-93, declared it its policy to defer the acceptance of any application for
CMTS. All the frequency bands allocated for CMTS use under the NTC's Memorandum Circular No.
5-11-88 and Memorandum Circular No. 2-12-92 had already been allocated to the existing CMTS
operators. Finally, Extelcom pointed out that Bayantel is its substantial stockholder to the extent of
about 46% of its outstanding capital stock, and Bayantel's application undermines the very
operations of Extelcom.

On March 13, 2000, Bayantel filed a Consolidated Reply/Comment, stating that the opposition was
10 

actually a motion seeking a reconsideration of the NTC Order reviving the instant application, and
thus cannot dwell on the material allegations or the merits of the case. Furthermore, Extelcom
cannot claim that frequencies were not available inasmuch as the allocation and assignment thereof
rest solely on the discretion of the NTC.

In the meantime, the NTC issued on March 9, 2000 Memorandum Circular No. 9-3-2000, re-
allocating the following radio frequency bands for assignment to existing CMTS operators and to
public telecommunication entities which shall be authorized to install, operate and maintain CMTS
networks, namely: 1745-1750MHz / 1840-1845MHz; 1750-1775MHz / 1845-1850MHz; 1765-
1770MHz / 1860-1865MHz; and 1770-1775MHz / 1865-1870MHz. 11

On May 3, 2000, the NTC issued an Order granting in favor of Bayantel a provisional authority to
operate CMTS service. The Order stated in pertinent part:
12 

On the issue of legal capacity on the part of Bayantel, this Commission has already taken
notice of the change in name of International Communications Corporation to Bayan
Telecommunications, Inc. Thus, in the Decision entered in NTC Case No. 93-284/94-200
dated 19 July 1999, it was recognized that Bayan Telecommunications, Inc., was formerly
named International Communications Corp. Bayantel and ICC Telecoms, Inc. are one and
the same entity, and it necessarily follows that what legal capacity ICC Telecoms has or has
acquired is also the legal capacity that Bayantel possesses.

On the allegation that the Commission has committed an error in allowing the revival of the
instant application, it appears that the Order dated 14 December 1993 archiving the same
was anchored on the non-availability of frequencies for CMTS. In the same Order, it was
expressly stated that the archival hereof, shall be without prejudice to its reinstatement "if
and when the requisite frequency becomes available." Inherent in the said Order is the
prerogative of the Commission in reviving the same, subject to prevailing conditions. The
Order of 1 February 2001, cited the availability of frequencies for CMTS, and based thereon,
the Commission, exercising its prerogative, revived and reinstated the instant application.
The fact that the motion for revival hereof was made ex-parte by the applicant is of no
moment, so long as the oppositors are given the opportunity to be later heard and present
the merits of their respective oppositions in the proceedings.

On the allegation that the instant application is already obsolete and overtaken by
developments, the issue is whether applicant has the legal, financial and technical capacity
to undertake the proposed project. The determination of such capacity lies solely within the
discretion of the Commission, through its applicable rules and regulations. At any rate, the
oppositors are not precluded from showing evidence disputing such capacity in the
proceedings at hand. On the alleged non-availability of frequencies for the proposed service
in view of the pending applications for the same, the Commission takes note that it has
issued Memorandum Circular 9-3-2000, allocating additional frequencies for CMTS. The
eligibility of existing operators who applied for additional frequencies shall be treated and
resolved in their respective applications, and are not in issue in the case at hand.
 Accordingly, the Motions for Reconsideration filed by SMARTCOM and GLOBE
TELECOMS/ISLACOM and the Motion to Dismiss filed by EXTELCOM are hereby DENIED
for lack of merit.
13

The grant of the provisional authority was anchored on the following findings:

COMMENTS:

1. Due to the operational mergers between Smart Communications, Inc. and Pilipino
Telephone Corporation (Piltel) and between Globe Telecom, Inc. (Globe) and Isla
Communications, Inc. (Islacom), free and effective competition in the CMTS market is
threatened. The fifth operator, Extelcom, cannot provide good competition in as much as it
provides service using the analog AMPS. The GSM system dominates the market.

2. There are at present two applicants for the assignment of the frequencies in the 1.7 Ghz
and 1.8 Ghz allocated to CMTS, namely Globe and Extelcom. Based on the number of
subscribers Extelcom has, there appears to be no congestion in its network - a condition that
is necessary for an applicant to be assigned additional frequencies. Globe has yet to prove
that there is congestion in its network considering its operational merger with Islacom.

3. Based on the reports submitted to the Commission, 48% of the total number of cities and
municipalities are still without telephone service despite the more than 3 million installed
lines waiting to be subscribed.

CONCLUSIONS:

1. To ensure effective competition in the CMTS market considering the operational merger of
some of the CMTS operators, new CMTS operators must be allowed to provide the service.

2. The re-allocated frequencies for CMTS of 3 blocks of 5 Mhz x 2 is sufficient for the number
of applicants should the applicants be qualified.

3. There is a need to provide service to some or all of the remaining cities and municipalities
without telephone service.

4. The submitted documents are sufficient to determine compliance to the technical

requirements. The applicant can be directed to submit details such as channeling plans,
exact locations of cell sites, etc. as the project implementation progresses, actual area
coverage ascertained and traffic data are made available. Applicant appears to be
technically qualified to undertake the proposed project and offer the proposed service.

IN VIEW OF THE FOREGOING and considering that there is prima facie evidence to show
that Applicant is legally, technically and financially qualified and that the proposed service is
technically feasible and economically viable, in the interest of public service, and in order to
facilitate the development of telecommunications services in all areas of the country, as well
as to ensure healthy competition among authorized CMTS providers, let a PROVISIONAL
AUTHORITY (P.A.) be issued to Applicant BAYAN TELECOMMUNICATIONS,
INC. authorizing it to construct, install, operate and maintain a Nationwide Cellular Mobile
Telephone Systems (CMTS), subject to the following terms and conditions without prejudice
to a final decision after completion of the hearing which shall be called within thirty (30) days
 from grant of authority, in accordance with Section 3, Rule 15, Part IV of the Commission's
Rules of Practice and Procedure. xxx. 14

Extelcom filed with the Court of Appeals a petition for certiorari and prohibition, docketed as CA-
15 

G.R. SP No. 58893, seeking the annulment of the Order reviving the application of Bayantel, the
Order granting Bayantel a provisional authority to construct, install, operate and maintain a
nationwide CMTS, and Memorandum Circular No. 9-3-2000 allocating frequency bands to new
public telecommunication entities which are authorized to install, operate and maintain CMTS.

On September 13, 2000, the Court of Appeals rendered the assailed Decision, the dispositive
16 

portion of which reads:

WHEREFORE, the writs of certiorari and prohibition prayed for are GRANTED. The Orders
of public respondent dated February 1, 2000 and May 3, 2000 in NTC Case No. 92-486 are
hereby ANNULLED and SET ASIDE and the Amended Application of respondent Bayantel
is DISMISSED without prejudice to the filing of a new CMTS application. The writ of
preliminary injunction issued under our Resolution dated August 15, 2000, restraining and
enjoining the respondents from enforcing the Orders dated February 1, 2000 and May 3,
2000 in the said NTC case is hereby made permanent. The Motion for Reconsideration of
respondent Bayantel dated August 28, 2000 is denied for lack of merit.

SO ORDERED. 17

Bayantel filed a motion for reconsideration of the above decision. The NTC, represented by the
18 

Office of the Solicitor General (OSG), also filed its own motion for reconsideration. On the other
19 

hand, Extelcom filed a Motion for Partial Reconsideration, praying that NTC Memorandum Circular
No. 9-3-2000 be also declared null and void. 20

On February 9, 2001, the Court of Appeals issued the assailed Resolution denying all of the motions
for reconsideration of the parties for lack of merit. 21

Hence, the NTC filed the instant petition for review on certiorari, docketed as G.R. No. 147096,
raising the following issues for resolution of this Court:

A. Whether or not the Order dated February 1, 2000 of the petitioner which revived the
application of respondent Bayantel in NTC Case No. 92-486 violated respondent Extelcom's
right to procedural due process of law;

B. Whether or not the Order dated May 3, 2000 of the petitioner granting respondent
Bayantel a provisional authority to operate a CMTS is in substantial compliance with NTC
Rules of Practice and Procedure and Memorandum Circular No. 9-14-90 dated September 4,
1990. 22

Subsequently, Bayantel also filed its petition for review, docketed as G.R. No. 147210, assigning the
following errors:

I. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS INTERPRETATION OF THE

PRINCIPLE OF "EXHAUSTION OF ADMINISTRATIVE REMEDIES" WHEN IT FAILED TO
DISMISS HEREIN RESPONDENT'S PETITION FOR CERTIORARI DESPITE ITS FAILURE
TO FILE A MOTION FOR RECONSIDERATION.
II. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE REVIVAL
OF NTC CASE NO. 92-486 ANCHORED ON A EX-PARTE MOTION TO REVIVE CASE
WAS TANTAMOUNT TO GRAVE ABUSE OF DISCRETION ON THE PART OF THE NTC.

III. THE COURT OF APPEALS SERIOUSLY ERRED WHEN IT DENIED THE MANDATE
OF THE NTC AS THE AGENCY OF GOVERNMENT WITH THE SOLE DISCRETION
REGARDING ALLOCATION OF FREQUENCY BAND TO TELECOMMUNICATIONS
ENTITIES.

IV. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS INTERPRETATION OF THE

LEGAL PRINCIPLE THAT JURISDICTION ONCE ACQUIRED CANNOT BE LOST WHEN
IT DECLARED THAT THE ARCHIVED APPLICATION SHOULD BE DEEMED AS A NEW
APPLICATION IN VIEW OF THE SUBSTANTIAL CHANGE IN THE CIRCUMSTANCES
ALLEGED IN ITS AMENDMENT APPLICATION.

V. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE ARCHIVING OF

THE BAYANTEL APPLICATION WAS A VALID ACT ON THE PART OF THE NTC EVEN IN
THE ABSENCE OF A SPECIFIC RULE ON ARCHIVING OF CASES SINCE RULES OF
PROCEDURE ARE, AS A MATTER OF COURSE, LIBERALLY CONSTRUED IN
PROCEEDINGS BEFORE ADMINISTRATIVE BODIES AND SHOULD GIVE WAY TO THE
GREATER HIERARCHY OF PUBLIC WELFARE AND PUBLIC INTEREST.

VI. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE ARCHIVING OF

BAYANTEL'S APPLICATION WAS NOT VIOLATIVE OF THE SUMMARY NATURE OF THE
PROCEEDINGS IN THE NTC UNDER SEC. 3, RULE 1 OF THE NTC REVISED RULES OF
PROCEDURE.

VII. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE
ARCHIVING OF BAYANTEL'S APPLICATION WAS VIOLATIVE OF THE ALLEGED
DECLARED POLICY OF THE GOVERNMENT ON THE TRANSPARENCY AND FAIRNESS
OF ADMINISTRATIVE PROCESS IN THE NTC AS LAID DOWN IN SEC 4(1) OF R.A. NO.
7925.

VIII. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE NTC
VIOLATED THE PROVISIONS OF THE CONSTITUTION PERTAINING TO DUE PROCESS
OF LAW.

IX. THE COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THAT THE MAY 3,
2000 ORDER GRANTING BAYANTEL A PROVISIONAL AUTHORITY SHOULD BE SET
ASIDE AND REVERSED.

i. Contrary to the finding of the Court of Appeals, there was no violation of the NTC Rule that
the legal, technical, financial and economic documentations in support of the prayer for
provisional authority should first be submitted.

ii. Contrary to the finding of the Court of Appeals, there was no violation of Sec. 3, Rule 15 of
the NTC Rules of Practice and Procedure that a motion must first be filed before a
provisional authority could be issued.
 iii. Contrary to the finding of the Court of Appeals that a plea for provisional authority
necessitates a notice and hearing, the very rule cited by the petitioner (Section 5, Rule 4 of
the NTC Rules of Practice and Procedure) provides otherwise.

iv. Contrary to the finding of the Court of Appeals, urgent public need is not the only basis for
the grant of a provisional authority to an applicant;

v. Contrary to the finding of the Court of Appeals, there was no violation of the constitutional
provision on the right of the public to information when the Common Carrier Authorization
Department (CCAD) prepared its evaluation report. 23

Considering the identity of the matters involved, this Court resolved to consolidate the two petitions. 24

At the outset, it is well to discuss the nature and functions of the NTC, and analyze its powers and
authority as well as the laws, rules and regulations that govern its existence and operations.

The NTC was created pursuant to Executive Order No. 546, promulgated on July 23, 1979. It
assumed the functions formerly assigned to the Board of Communications and the
Telecommunications Control Bureau, which were both abolished under the said Executive Order.
Previously, the NTC's functions were merely those of the defunct Public Service Commission (PSC),
created under Commonwealth Act No. 146, as amended, otherwise known as the Public Service
Act, considering that the Board of Communications was the successor-in-interest of the PSC. Under
Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the
Department of Transportation and Communications.

In the regulatory telecommunications industry, the NTC has the sole authority to issue Certificates of
Public Convenience and Necessity (CPCN) for the installation, operation, and maintenance of
communications facilities and services, radio communications systems, telephone and telegraph
systems. Such power includes the authority to determine the areas of operations of applicants for
telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then
PSC, upon notice and hearing, to issue Certificates of Public Convenience for the operation of public
services within the Philippines "whenever the Commission finds that the operation of the public
service proposed and the authorization to do business will promote the public interests in a proper
and suitable manner." The procedure governing the issuance of such authorizations is set forth in
25 

Section 29 of the said Act, the pertinent portion of which states:

All hearings and investigations before the Commission shall be governed by rules adopted
by the Commission, and in the conduct thereof, the Commission shall not be bound by the
technical rules of legal evidence. xxx.

In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15, Section
3 of its 1978 Rules of Practice and Procedure, which provides:

Sec. 3. Provisional Relief. --- Upon the filing of an application, complaint or petition or at any
stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the
relief prayed for, based on the pleading, together with the affidavits and supporting
documents attached thereto, without prejudice to a final decision after completion of the
hearing which shall be called within thirty (30) days from grant of authority asked for.
(underscoring ours)
Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules
which were filed with the Office of the National Administrative Register on February 3, 1993. These
Revised Rules deleted the phrase "on its own initiative;" accordingly, a provisional authority may be
issued only upon filing of the proper motion before the Commission.

In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification
to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of
general circulation, the NTC has been applying the 1978 Rules.

The absence of publication, coupled with the certification by the Commissioner of the NTC stating
that the NTC was still governed by the 1978 Rules, clearly indicate that the 1993 Revised Rules
have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that
the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment.
There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the
UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section
3 thereof merely states:

Filing. --- (1) Every agency shall file with the University of the Philippines Law Center three
(3) certified copes of every rule adopted by it. Rules in force on the date of effectivity of this
Code which are not filed within three (3) months from the date shall not thereafter be the
basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain or disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to
public inspection.

The National Administrative Register is merely a bulletin of codified rules and it is furnished only to
the Office of the President, Congress, all appellate courts, the National Library, other public offices
or agencies as the Congress may select, and to other persons at a price sufficient to cover
publication and mailing or distribution costs. In a similar case, we held:
26 

This does not imply however, that the subject Administrative Order is a valid exercise of such
quasi-legislative power. The original Administrative Order issued on August 30, 1989, under
which the respondents filed their applications for importations, was not published in the
Official Gazette or in a newspaper of general circulation. The questioned Administrative
Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which
reads:

"Article 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in the
Philippines), unless it is otherwise provided. x x x"

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed
with, and published by the UP Law Center in the National Administrative Register, does not
cure the defect related to the effectivity of the Administrative Order.

This Court, in Tañada vs. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA
446) stated, thus:
 "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 is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by
the President in the exercise of legislative power 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 also to a valid delegation.

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

xxx

We agree that the publication must be in full or it is no publication at all since its
purpose is to inform the public of the contents of the laws."

The Administrative Order 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, i.e., P.D. 1071, in relation to LOI 444 and EO 133. 27

Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua
non before statutes, rules or regulations can take effect. This is explicit from Executive Order No.
200, which repealed Article 2 of the Civil Code, and which states that:

Laws shall take effect after fifteen days following the completion of their publication either in
the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided. 28

The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service
Act (C.A. 146, as amended), fall squarely within the scope of these laws, as explicitly mentioned in
the case Tañada v. Tuvera. 29

Our pronouncement in Tañada 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. 30

Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of
general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said
Rules shall take effect only after their publication in a newspaper of general circulation. In the
31 

absence of such publication, therefore, it is the 1978 Rules that governs.

In any event, regardless of whether the 1978 Rules or the 1993 Revised Rules should apply, the
records show that the amended application filed by Bayantel in fact included a motion for the
issuance of a provisional authority. Hence, it cannot be said that the NTC granted the provisional
authority motu proprio. The Court of Appeals, therefore, erred when it found that the NTC issued its
Order of May 3, 2000 on its own initiative. This much is acknowledged in the Decision of the Court of
Appeals:

As prayer, ICC asked for the immediate grant of provisional authority to construct, install,
maintain and operate the subject service and to charge the proposed rates and after due
notice and hearing, approve the instant application and grant the corresponding certificate of
public convenience and necessity. 32

The Court of Appeals also erred when it declared that the NTC's Order archiving Bayantel's
application was null and void. The archiving of cases is a widely accepted measure designed to
shelve cases in which no immediate action is expected but where no grounds exist for their outright
dismissal, albeit without prejudice. It saves the petitioner or applicant from the added trouble and
expense of re-filing a dismissed case. Under this scheme, an inactive case is kept alive but held in
abeyance until the situation obtains wherein action thereon can be taken.

In the case at bar, the said application was ordered archived because of lack of available
frequencies at the time, and made subject to reinstatement upon availability of the requisite
frequency. To be sure, there was nothing irregular in the revival of the application after the condition
therefor was fulfilled.

While, as held by the Court of Appeals, there are no clear provisions in the Rules of the NTC which
expressly allow the archiving of any application, this recourse may be justified under Rule 1, Section
2 of the 1978 Rules, which states:

Sec. 2. Scope.--- These rules govern pleadings, practice and procedure before the Board of
Communications (now NTC) in all matters of hearing, investigation and proceedings within
the jurisdiction of the Board. However, in the broader interest of justice and in order to best
serve the public interest, the Board may, in any particular matter, except it from these rules
and apply such suitable procedure to improve the service in the transaction of the public
business. (underscoring ours)

The Court of Appeals ruled that the NTC committed grave abuse of discretion when it revived
Bayantel's application based on an ex-parte motion. In this regard, the pertinent provisions of the
NTC Rules:

Sec. 5. Ex-parte Motions. --- Except for motions for provisional authorization of proposed
services and increase of rates, ex-parte motions shall be acted upon by the Board only upon
showing of urgent necessity therefor and the right of the opposing party is not substantially
impaired.33

Thus, in cases which do not involve either an application for rate increase or an application for a
provisional authority, the NTC may entertain ex-parte motions only where there is an urgent
necessity to do so and no rights of the opposing parties are impaired. 1âwphi1.nêt

The Court of Appeals ruled that there was a violation of the fundamental right of Extelcom to due
process when it was not afforded the opportunity to question the motion for the revival of the
application. However, it must be noted that said Order referred to a simple revival of the archived
application of Bayantel in NTC Case No. 92-426. At this stage, it cannot be said that Extelcom's right
to procedural due process was prejudiced. It will still have the opportunity to be heard during the full-
blown adversarial hearings that will follow. In fact, the records show that the NTC has scheduled
several hearing dates for this purpose, at which all interested parties shall be allowed to register their
opposition. We have ruled that there is no denial of due process where full-blown adversarial
proceedings are conducted before an administrative body. With Extelcom having fully participated in
34 

the proceedings, and indeed, given the opportunity to file its opposition to the application, there was
clearly no denial of its right to due process.

In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard
does not only refer to the right to present verbal arguments in court. A party may also be
heard through his pleadings. where opportunity to be heard is accorded either through oral
arguments or pleadings, there is no denial of procedural due process. As reiterated
in National Semiconductor (HK) Distribution, Ltd. vs. NLRC (G.R. No. 123520, June 26,
1998), the essence of due process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain one's side. Hence, in Navarro III vs.
Damaso (246 SCRA 260 [1995]), we held that a formal or trial-type hearing is not at all times
and not in all instances essential. Plainly, petitioner was not denied due process.35

Extelcom had already entered its appearance as a party and filed its opposition to the application. It
was neither precluded nor barred from participating in the hearings thereon. Indeed, nothing, not
even the Order reviving the application, bars or prevents Extelcom and the other oppositors from
participating in the hearings and adducing evidence in support of their respective oppositions. The
motion to revive could not have possibly caused prejudice to Extelcom since the motion only sought
the revival of the application. It was merely a preliminary step towards the resumption of the
hearings on the application of Bayantel. The latter will still have to prove its capability to undertake
the proposed CMTS. Indeed, in its Order dated February 1, 2000, the NTC set several hearing dates
precisely intended for the presentation of evidence on Bayantel's capability and qualification. Notice
of these hearings were sent to all parties concerned, including Extelcom.

As regards the changes in the personal circumstances of Bayantel, the same may be ventilated at
the hearings during Bayantel's presentation of evidence. In fact, Extelcom was able to raise its
arguments on this matter in the Opposition (With Motion to Dismiss) anent the re-opening and re-
instatement of the application of Bayantel. Extelcom was thus heard on this particular point.

Likewise, the requirements of notice and publication of the application is no longer necessary
inasmuch as the application is a mere revival of an application which has already been published
earlier. At any rate, the records show that all of the five (5) CMTS operators in the country were duly
notified and were allowed to raise their respective oppositions to Bayantel's application through the
NTC's Order dated February 1, 2000.

It should be borne in mind that among the declared national policies under Republic Act No. 7925,
otherwise known as the Public Telecommunications Policy Act of the Philippines, is the healthy
competition among telecommunications carriers, to wit:

A healthy competitive environment shall be fostered, one in which telecommunications

carriers are free to make business decisions and to interact with one another in providing
telecommunications services, with the end in view of encouraging their financial viability
while maintaining affordable rates.36

The NTC is clothed with sufficient discretion to act on matters solely within its competence. Clearly,
the need for a healthy competitive environment in telecommunications is sufficient impetus for the
NTC to consider all those applicants who are willing to offer competition, develop the market and
provide the environment necessary for greater public service. This was the intention that came to
light with the issuance of Memorandum Circular 9-3-2000, allocating new frequency bands for use of
CMTS. This memorandum circular enumerated the conditions prevailing and the reasons which
necessitated its issuance as follows:

-    the international accounting rates are rapidly declining, threatening the subsidy to the
local exchange service as mandated in EO 109 and RA 7925;

-    the public telecommunications entities which were obligated to install, operate and
maintain local exchange network have performed their obligations in varying degrees;

-    after more than three (3) years from the performance of the obligations only 52% of the
total number of cities and municipalities are provided with local telephone service.

-    there are mergers and consolidations among the existing cellular mobile telephone
service (CMTS) providers threatening the efficiency of competition;

-    there is a need to hasten the installation of local exchange lines in unserved areas;

-    there are existing CMTS operators which are experiencing congestion in the network
resulting to low grade of service;

-    the consumers/customers shall be given the freedom to choose CMTS operators from
which they could get the service. 37

Clearly spelled out is the need to provide enhanced competition and the requirement for more
landlines and telecommunications facilities in unserved areas in the country. On both scores,
therefore, there was sufficient showing that the NTC acted well within its jurisdiction and in
pursuance of its avowed duties when it allowed the revival of Bayantel's application.

We now come to the issue of exhaustion of administrative remedies. The rule is well-entrenched that
a party must exhaust all administrative remedies before resorting to the courts. The premature
invocation of the intervention of the court is fatal to one's cause of action. This rule would not only
give the administrative agency an opportunity to decide the matter by itself correctly, but would also
prevent the unnecessary and premature resort to courts. In the case of Lopez v. City of Manila, we
38  39 

held:

As a general rule, where the law provides for the remedies against the action of an
administrative board, body or officer, relief to courts can be sought only after exhausting all
remedies provided. The reason rests upon the presumption that the administrative body, if
given the chance to correct its mistake or error, may amend its decision on a given matter
and decide it properly. Therefore, where a remedy is available within the administrative
machinery, this should be resorted to before resort can be made to the courts, not only to
give the administrative agency the opportunity to decide the matter by itself correctly, but
also to prevent unnecessary and premature resort to courts.

Clearly, Extelcom violated the rule on exhaustion of administrative remedies when it went directly to
the Court of Appeals on a petition for certiorari and prohibition from the Order of the NTC dated May
3, 2000, without first filing a motion for reconsideration. It is well-settled that the filing of a motion for
reconsideration is a prerequisite to the filing of a special civil action for certiorari.

The general rule is that, in order to give the lower court the opportunity to correct itself, a
motion for reconsideration is a prerequisite to certiorari. It also basic that petitioner must
 exhaust all other available remedies before resorting to certiorari. This rule, however, is
subject to certain exceptions such as any of the following: (1) the issues raised are purely
legal in nature, (2) public interest is involved, (3) extreme urgency is obvious or (4) special
circumstances warrant immediate or more direct action. 40

This case does not fall under any of the recognized exceptions to this rule. Although the Order of the
NTC dated May 3, 2000 granting provisional authority to Bayantel was immediately executory, it did
not preclude the filing of a motion for reconsideration. Under the NTC Rules, a party adversely
affected by a decision, order, ruling or resolution may within fifteen (15) days file a motion for
reconsideration. That the Order of the NTC became immediately executory does not mean that the
remedy of filing a motion for reconsideration is foreclosed to the petitioner. 41

Furthermore, Extelcom does not enjoy the grant of any vested interest on the right to render a public
service. The Constitution is quite emphatic that the operation of a public utility shall not be exclusive.
Thus:

No franchise, certificate, or any other form of authorization for the operation of a public utility
shall be granted to citizens of the Philippines or to corporations organized under the laws of
the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall
such franchise, certificate or authorization be exclusive in character or for a longer period
than fifty years. Neither shall any such franchise or right be granted except under the
condition that it shall be subject to amendment, alteraion, or repeal by the Congress when
the common good so requires. xxx xxx xxx. 42

In Radio Communications of the Phils., Inc. v. National Telecommunications Commission, we held:43 

It is well within the powers of the public respondent to authorize the installation by the private
respondent network of radio communications systems in Catarman, Samar and San Jose,
Mindoro. Under the circumstances, the mere fact that the petitioner possesses a franchise to
put up and operate a radio communications system in certain areas is not an insuperable
obstacle to the public respondent's issuing the proper certificate to an applicant desiring to
extend the same services to those areas. The Constitution mandates that a franchise cannot
be exclusive in nature nor can a franchise be granted except that it must be subject to
amendment, alteration, or even repeal by the legislature when the common good so
requires. (Art. XII, sec. 11 of the 1986 Constitution). There is an express provision in the
petitioner's franchise which provides compliance with the above mandate (RA 2036, sec.
15).

Even in the provisional authority granted to Extelcom, it is expressly stated that such authority is not
exclusive. Thus, the Court of Appeals erred when it gave due course to Extelcom's petition and ruled
that it constitutes an exception to the rule on exhaustion of administrative remedies.

Also, the Court of Appeals erred in annulling the Order of the NTC dated May 3, 2000, granting
Bayantel a provisional authority to install, operate and maintain CMTS. The general rule is that
purely administrative and discretionary functions may not be interfered with by the courts. Thus,
in Lacuesta v. Herrera, it was held:
44 

xxx (T)he powers granted to the Secretary of Agriculture and Commerce (natural resources)
by law regarding the disposition of public lands such as granting of licenses, permits, leases
and contracts, or approving, rejecting, reinstating, or canceling applications, are all executive
and administrative in nature. It is a well recognized principle that purely administrative and
discretionary functions may not be interfered with by the courts. (Coloso vs. Board of
 Accountancy, G.R. No. L-5750, April 20, 1953) In general, courts have no supervising power
over the proceedings and actions of the administrative departments of the government. This
is generally true with respect to acts involving the exercise of judgement or discretion and
findings of fact. (54 Am. Jur. 558-559) xxx.

The established exception to the rule is where the issuing authority has gone beyond its statutory
authority, exercised unconstitutional powers or clearly acted arbitrarily and without regard to his duty
or with grave abuse of discretion. None of these obtains in the case at bar.
45 

Moreover, in petitions for certiorari, evidentiary matters or matters of fact raised in the court below
are not proper grounds nor may such be ruled upon in the proceedings. As held in National
Federation of Labor v. NLRC: 46

At the outset, it should be noted that a petition for certiorari under Rule 65 of the Rules of
Court will prosper only if there is a showing of grave abuse of discretion or an act without or
in excess of jurisdiction on the part of the National Labor Relations Commission. It does not
include an inquiry as to the correctness of the evaluation of evidence which was the basis of
the labor official or officer in determining his conclusion. It is not for this Court to re-examine
conflicting evidence, re-evaluate the credibility of witnesses nor substitute the findings of fact
of an administrative tribunal which has gained expertise in its special field. Considering that
the findings of fact of the labor arbiter and the NLRC are supported by evidence on record,
the same must be accorded due respect and finality.

This Court has consistently held that the courts will not interfere in matters which are addressed to
the sound discretion of the government agency entrusted with the regulation of activities coming
under the special and technical training and knowledge of such agency. It has also been held that
47 

the exercise of administrative discretion is a policy decision and a matter that can best be
discharged by the government agency concerned, and not by the courts. In Villanueva v. Court of
48 

Appeals, it was held that findings of fact which are supported by evidence and the conclusion of
49 

experts should not be disturbed. This was reiterated in Metro Transit Organization, Inc. v. National
Labor Relations Commission, wherein it was ruled that factual findings of quasi-judicial bodies
50 

which have acquired expertise because their jurisdiction is confined to specific matters are generally
accorded not only respect but even finality and are binding even upon the Supreme Court if they are
supported by substantial evidence. 1âwphi1.nêt

Administrative agencies are given a wide latitude in the evaluation of evidence and in the exercise of
its adjudicative functions. This latitude includes the authority to take judicial notice of facts within its
special competence.

In the case at bar, we find no reason to disturb the factual findings of the NTC which formed the
basis for awarding the provisional authority to Bayantel. As found by the NTC, Bayantel has been
granted several provisional and permanent authorities before to operate various telecommunications
services. Indeed, it was established that Bayantel was the first company to comply with its obligation
51 

to install local exchange lines pursuant to E.O. 109 and R.A. 7925. In recognition of the same, the
provisional authority awarded in favor of Bayantel to operate Local Exchange Services in Quezon
City, Malabon, Valenzuela and the entire Bicol region was made permanent and a CPCN for the said
service was granted in its favor. Prima facie evidence was likewise found showing Bayantel's legal,
financial and technical capacity to undertake the proposed cellular mobile telephone service.

Likewise, the May 3, 2000 Order did not violate NTC Memorandum Circular No. 9-14-90 dated
September 4, 1990, contrary to the ruling of the Court of Appeals. The memorandum circular sets
forth the procedure for the issuance of provisional authority thus:
 EFFECTIVE THIS DATE, and as part of the Commission's drive to streamline and fast track
action on applications/petitions for CPCN other forms of authorizations, the Commission
shall be evaluating applications/petitions for immediate issuance of provisional
authorizations, pending hearing and final authorization of an application on its merit.

For this purpose, it is hereby directed that all applicants/petitioners seeking for provisional
authorizations, shall submit immediately to the Commission, either together with their
application or in a Motion all their legal, technical, financial, economic documentations in
support of their prayer for provisional authorizations for evaluation. On the basis of their
completeness and their having complied with requirements, the Commission shall be issuing
provisional authorizations.

Clearly, a provisional authority may be issued even pending hearing and final determination of an
application on its merits.

Finally, this Court finds that the Manifestations of Extelcom alleging forum shopping on the part of
the NTC and Bayantel are not impressed with merit. The divisions of the Supreme Court are not to
be considered as separate and distinct courts. The Supreme Court remains a unit notwithstanding
that it works in divisions. Although it may have three divisions, it is but a single court. Actions
considered in any of these divisions and decisions rendered therein are, in effect, by the same
Tribunal. The divisions of this Court are not to be considered as separate and distinct courts but as
divisions of one and the same court. 52

Moreover, the rules on forum shopping should not be literally interpreted. We have stated thus:

It is scarcely necessary to add that Circular No. 28-91 must be so interpreted and applied as
to achieve the purposes projected by the Supreme Court when it promulgated that circular.
Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the
orderly administration of justice and should not be interpreted with such absolute literalness
as to subvert its own ultimate and legitimate objection or the goal of all rules of procedure –
which is to achieve substantial justice as expeditiously as possible. 53

Even assuming that separate actions have been filed by two different parties involving essentially
the same subject matter, no forum shopping was committed as the parties did not resort to multiple
judicial remedies. The Court, therefore, directed the consolidation of the two cases because they
involve essentially the same issues. It would also prevent the absurd situation wherein two different
divisions of the same court would render altogether different rulings in the cases at bar.

We rule, likewise, that the NTC has legal standing to file and initiate legal action in cases where it is
clear that its inaction would result in an impairment of its ability to execute and perform its functions.
Similarly, we have previously held in Civil Service Commission v. Dacoycoy that the Civil Service
54 

Commission, as an aggrieved party, may appeal the decision of the Court of Appeals to this Court.

As correctly stated by the NTC, the rule invoked by Extelcom is Rule 65 of the Rules of Civil
Procedure, which provides that public respondents shall not appear in or file an answer or comment
to the petition or any pleading therein. The instant petition, on the other hand, was filed under Rule
55 

45 where no similar proscription exists.

WHEREFORE, in view of the foregoing, the consolidated petitions are GRANTED. The Court of
Appeals' Decision dated September 13, 2000 and Resolution dated February 9, 2001
are REVERSED and SET ASIDE. The permanent injunction issued by the Court of Appeals
is LIFTED. The Orders of the NTC dated February 1, 2000 and May 3, 2000 are REINSTATED. No
pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan, and Pardo, JJ., concur.

Footnote

Rollo, G.R. No. 147210, pp. 84-92.

1 

Ibid., p. 150.
2 

Id., pp. 152-163.

3 

Id., p. 164.
4 

Id., p. 166.
5 

Id., p. 167.
6 

Id., pp. 168-170.
7 

Id., p. 171.
8 

Id., pp. 173-181.
9 

10 
Id., pp. 182-189.

11 
Id., pp. 202-203.

12 
Id., pp. 217-230.

13 
Id., pp. 218-219.

14 
Id., pp. 224-226.

15 
Id., pp. 231-271.

Associate Justice Presbitero J. Velasco, Jr., ponente; Associate Justices Bernardo Ll. Salas
16 

and Edgardo P. Cruz, concurring.

17 
Rollo, G.R. No. 147210, pp. 78-79.

18 
Ibid., pp. 439-462.
19 
Id., pp. 464-484.

20 
Id., pp. 488-500.

21 
Id., pp. 81-83.

22 
Rollo, G.R. No. 147096, p. 16.

23 
Rollo, G.R. No. 147210, pp. 15-17.

24 
Rollo, G.R. No. 147096, p. 622.

25 
Commonwealth Act No. 146, Section 16 (a).

26 
Administrative Code of 1987, Book VII, Chapter 2, Section 7.

27 
Philippine International Trading Corp. v. Angeles, 263 SCRA 421, 446-447 [1996].

28 
E.O. 200, Section 1.

29 
146 SCRA 446 [1986].

PHILSA International Placement & Services Corp. v Secretary of Labor, G.R. No. 103144,
30 

April 4, 2001.

Section 20 thereof provides: "These Revised Rules shall take effect fifteen (15) days after
31 

its publication in a newspaper of general circulation."

32 
CA Decision, p. 5.

33 
Rule 5, Section 5; underscoring ours.

34 
Smith Kline & French Laboratories, Ltd. v. Court of Appeals, 276 SCRA 224, 241 [1997].

35 
Bautista v. COMELEC, 298 SCRA 480, 486 [1998].

36 
R.A. 7925, Article II, Section 4 (f).

37 
Rollo, G.R. No. 147210, pp. 202-203.

Social Security System Employees Association v. Bathan-Velasco, 313 SCRA 250, 252
38 

[1999].

39 
303 SCRA 448, 458 [1999].

Indiana Aerospace University v. Commission on Higher Education (CHED), G.R. No.

40 

139371, April 4, 2001.

41 
Yasay v. Desierto, 300 SCRA 494, 505 [1998].
 42 
Constitution, Article XII, Section 11.

43 
150 SCRA 450, 459 [1987].

44 
62 SCRA 115, 122 [1975].

45 
Lacuesta v. Herrera, supra.

46 
283 SCRA 275, 284 [1997]; citing ComSavings Bank v. NLRC, 257 SCRA 307 [1996].

Concerned Officials of the Metropolitan Waterworks and Sewerage System

47 

(MWSS) v. Vasquez, 240 SCRA 502, 529 [1995].

48 
First Lepanto Ceramics v. Court of Appeals, 253 SCRA 552, 558 [1996].

49 
205 SCRA 537, 544 [1992].

50 
263 SCRA 313, 319 [1996].

51 
Order dated May 3, 2000, pp. 3-4.

52 
Uy v. Limsiongco, 41 Phil. 94, 101 [1920].

Cabarrus, Jr. v. Bernas, 279 SCRA 388, 394-395 [1997]; Gabionza v. Court of Appeals, et
53 

al., 234 SCRA 192, 198 [1994]; Cruz v. Court of Appeals, 309 SCRA 714, 725 [1999].

54 
306 SCRA 425, 437 [1999].

55 
1997 Rules of Civil Procedure, Rule 65, Section 5, second paragraph.

SECOND DIVISION

[G.R. No. 150178. November 26, 2004]

FLORIAN R. GAOIRAN, petitioner, vs. HON. ANGEL C. ALCALA,

Retired Chairman, Commission on Higher Education, ESTER
ALBANO GARCIA, now Chairman, Commission on Higher
Education, FELIPE S. AMMUGAUAN, SR., Vocation School
Superintendent I, Angadanan Agro-Industrial College, EDMOND
M. CASTILLEJO, Administrative Officer I, Angadanan Agro-
Industrial College, and DIOSDADO TELAN, Instructor I & Head
 Teacher III, OIC Designate, Angadanan Agro-Industrial College,
Angadanan, Isabela, respondents.

DECISION
CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court filed by Florian R. Gaoiran, seeking to reverse and set aside the Decision  of the
[1]

Court of Appeals in CA-G.R. SP No. 61477. In the assailed decision, the appellate court
reversed the Decision dated February 15, 2000 of the Regional Trial Court (RTC) of
Cauayan, Isabela, Branch 20, nullifying the Resolution dated June 3, 1999 of Hon.
Angel C. Alcala, then Chairman of the Commission on Higher Education (CHED),
dismissing petitioner Gaoiran from the service for grave misconduct and conduct
prejudicial to the best interest of the service.
The factual antecedents of the case are as follows:
On October 29, 1997, a letter-complaint was filed with the CHED against petitioner
Gaoiran, Head Teacher III in the High School Department of the Angadanan Agro-
Industrial College (AAIC),  a state-supervised school in Angadanan, Isabela. In his
[2]

letter-complaint, respondent Edmond M. Castillejo, Administrative Officer II, also of the

same school, charged the petitioner with mauling him while he was performing his
duties therein. The incident allegedly took place on August 15, 1997 at 2:30 p.m. inside
the school premises. Appended to the letter-complaint were the verified criminal
complaint filed by respondent Castillejo against the petitioner and the sworn statements
of his witnesses. The criminal complaint for assault to a person in authority was filed
with the Municipal Circuit Trial Court of Angadanan-San Guillermo and docketed as
Criminal Case No. 97-42.
The letter-complaint was referred to the Legal Affairs Service of the CHED.
Thereafter, Atty. Felina S. Dasig, then Officer-in-Charge of the Office of the Director III,
Legal Affairs Service, conducted a fact-finding investigation on the mauling incident to
determine the existence of a prima facie case against the petitioner.
During the fact-finding investigation, respondent Castillejo averred that at 2:30 p.m.
on August 15, 1997, while he was performing his usual duties as Administrative Officer
II, the petitioner suddenly barged into his (Castillejos) office and, then and there,
assaulted and boxed him. The petitioner delivered blows on respondent Castillejos
head, left eye, left eyebrow and lower lip. Not content with the injuries he inflicted on
respondent Castillejo, the petitioner tried to throw him down the stairs but was
prevented by the timely intervention of Mr. Ismael Bautista, Accountant I of the same
school. Bautista and other employees of the AAIC corroborated respondent Castillejos
statements. Moreover, the medical certificate issued by Dr. Belinda L. Miguel showed
that on August 15, 1997, she treated respondent Castillejo for the wounds he sustained
on his left eye, left eyebrow and lower lip.
For his part, the petitioner averred that at around 2:30 p.m. of August 15, 1997, he
was about to leave the school premises. Suddenly, respondent Castillejo shouted to the
security guard to punch out the petitioners attendance card. This irked the petitioner
because there were students and other teachers in the vicinity. The petitioner
confronted respondent Castillejo and asked the latter why he had to embarrass him
(petitioner) in front of the students. Respondent Castillejo just turned his back and
proceeded to his office. The petitioner followed him and later saw that respondent
Castillejo was already holding a wrench. Inside respondent Castillejos office, the
petitioner made a side step and just then, respondent Castillejo slipped and fell flat on
the floor. The petitioner noticed that respondent Castillejos left eyebrow was bleeding
and he was putting up a struggle (nagpupumiglas), so the petitioner held his feet. While
going down the stairs, the petitioner met Bautista and Henry Rupac, Watchman I of the
school.
After the fact-finding investigation was terminated, and upon finding of a prima
facie case against the petitioner for grave misconduct and conduct prejudicial to the
best interest of the service, Atty. Dasig issued the Formal Charge and Order of
Preventive Suspension dated July 27, 1998 stating in part:

WHEREFORE, you are hereby directed to answer in writing and under oath the above
charges against you within ten (10) days from receipt thereof, submitting therewith
sworn statements of your witnesses and other pertinent documents, if any. In your
answer, you are directed to state whether or not you elect a formal hearing of the
charges against you or you waive your rights to such hearing. You are, likewise,
advised of your right to counsel.

Considering the gravity of the instant charge against you, pursuant to the provisions of
P.D. 807, as amended, you are hereby PREVENTIVELY SUSPENDED FOR
NINETY (90) DAYS WITHOUT PAY effective upon receipt thereof. [3]

The petitioner did not submit his written counter-affidavit or answer to the charges
against him. Instead, he filed with the RTC of Cauayan, Isabela, Branch 20, a petition
for certiorari and prohibition to restrain the enforcement of the said preventive
suspension order. However, considering that the petitioner had already served the
suspension, the case was dismissed for being moot and academic.
The petitioner sought reconsideration of the formal charge and preventive
suspension order, contending that the letter-complaint was not under oath and that he
was not informed nor apprised of the complaint against him before, during and after the
preliminary fact-finding investigation.
Thereafter, Joel Voltaire V. Mayo, who was later appointed Director of the Legal
Affairs Service of the CHED, issued the Resolution dated February 20, 1999, dismissing
the administrative complaint against the petitioner on the ground that the letter-
complaint of respondent Castillejo was not under oath.
However, respondent Hon. Angel C. Alcala, then Chairman of the CHED,
apparently unaware of the existence of Director Mayos resolution, issued another
Resolution dated June 3, 1999, finding the petitioner guilty of grave misconduct and
conduct prejudicial to the best interest of the service and dismissing him therefrom. The
dispositive portion of respondent Alcalas resolution states:

WHEREFORE, in the light of the foregoing, respondent FLORIAN R. GAOIRAN is

hereby meted the penalty of DISMISSAL FROM THE SERVICE for unlawfully
attacking a person in authority while in the active performance of his duties and
responsibilities and, then and there, inflicted physical injuries on his person. This is
without prejudice to the complainants right to institute the proper criminal and civil
actions against the respondent relative thereto.

The Vocational Schools Superintendent of Angadanan Agro-Industrial College,

Angadanan, Isabela, is hereby directed to effectively implement this Order and to
submit a report thereon within three (3) days upon implementation.

SO ORDERED. [4]

The petitioner received a copy of the above resolution on July 12, 1999, which was
served on him by respondent Felipe P. Ammugauan, Sr., School Superintendent I of
AAIC.
The petitioner then filed with the RTC of Cauayan, Isabela, Branch 20, a petition for
certiorari, prohibition and injunction. He alleged that respondent Alcala committed grave
abuse of discretion when, in the Resolution dated June 3, 1999, he dismissed the
petitioner from the service despite the fact that the administrative complaint against him
had already been dismissed per the Resolution of February 20, 1999 of Director Mayo
of the Legal Affairs Service.
In its Decision dated February 15, 2000, the RTC rendered judgment in favor of the
petitioner as it declared the June 3, 1999 Resolution of respondent Alcala null and void.
The RTC found that after the formal charge was filed against the petitioner and he
chose not to file an answer thereto, a formal investigation was still required to be
conducted under the Civil Service Rules. When Director Mayo of the Legal Affairs
Service, in his February 20, 1999 Resolution, dismissed the administrative complaint
against the petitioner on the ground that the letter-complaint was not under oath, the
formal investigation had not, as yet, been terminated. Such dismissal, according to the
RTC, put an end to the litigation. Thus, respondent Alcala acted with grave abuse of
discretion in issuing his June 3, 1999 Resolution, dismissing the petitioner from the
service, for the reason that the administrative complaint against him had already been
dismissed.
On appeal by the respondents, the Court of Appeals (CA), in the assailed Decision
of September 10, 2001, reversed and set aside the decision of the RTC. The CA
declared as valid respondent Alcalas June 3, 1999 Resolution, dismissing the petitioner
from the service. On the other hand, it declared as without legal effect Director Mayos
February 20, 1999 Resolution, dismissing the administrative complaint against the
petitioner.
 In so ruling, the CA noted an apparent irregularity in Director Mayos February 20,
1999 Resolution. The CA pointed out that while the said resolution was ostensibly dated
February 20, 1999, a copy thereof was mailed to respondent Castillejo only on July 6,
1999 and received by the latter only on July 14, 1999. The petitioner, for his part,
received a copy thereof only on July 1, 1999. Prior to these dates, the existence of the
said resolution had not been established; hence, the date of its actual issuance
remained doubtful. The CA ruled that between the two conflicting resolutions, Director
Mayos February 20, 1999 Resolution and respondent Alcalas June 3, 1999 Resolution,
the latter was entitled to the presumption of regularity. Moreover, respondent Alcala, as
then Chairman of the CHED, had the authority to reverse and set aside the acts or
issuances of his subordinates, including that of Director Mayo.
The CA further ratiocinated that, even granting that the February 20, 1999
Resolution was regularly issued, Director Mayo nonetheless overstepped his authority
because Atty. Dasig, then OIC of the Legal Affairs Service, had filed the formal charge
and order of preventive suspension against the petitioner as early as July 27, 1998. The
CA also held that, contrary to Director Mayos ruling, the fact that the letter-complaint
was not under oath was not fatal. Even an anonymous complaint may be acted upon by
the authority concerned provided that the same is verifiable, since under Section 48  of
[5]

Executive Order (E.O.) No. 292,  administrative proceedings may be commenced

[6]

against a subordinate officer or employee by the Secretary or head of office of

equivalent rank, or head of local government or chiefs of agencies, or regional directors.
The CA, likewise, opined that in administrative proceedings, a formal or trial-type
hearing is not, at all times, necessary. In this case, the petitioner was not denied
procedural due process as he was afforded a fair and reasonable opportunity to explain
his side. On the other hand, the CA declared that respondent Ester Albano Garcia, who
replaced respondent Alcala as Chairman of the CHED, was denied procedural due
process by the RTC when it rendered its decision without awaiting her answer to the
petition. The dispositive portion of the assailed CA decision reads:

WHEREFORE, premises considered, the appealed decision is hereby REVERSED

AND SET ASIDE. Accordingly, the Resolution dated June 3, 1999 of then Chairman
of CHED, Angel C. Alcala is hereby declared valid while the Resolution dated
February 20, 1999 of Director Joel Voltaire Mayo is hereby declared to be without
legal effect.

SO ORDERED. [7]

Aggrieved, the petitioner now comes to this Court alleging as follows:

1. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW FOR NOT UPHOLDING THE EXPRESS PROVISIONS OF THE
CIVIL SERVICE LAW ESPECIALLY RULE XIV, SECTION 2 OF THE
OMNIBUS RULES IMPLEMENTING BOOK 5 OF EXECUTIVE [ORDER] NO.
292 AND OTHER PERTINENT CIVIL SERVICE LAWS, SECTION 2, SECTION 4
AND PARAGRAPH D OF SECTION 4;

2. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW IN NOT HOLDING THAT A VOID COMPLAINT IS DEEMED
INEXISTENT;

3. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW IN NOT ORDERING A FORMAL INVESTIGATION OF THE
CHARGES PROFFERED AGAINST THE PETITIONER THERE BEING NO
FORMAL INVESTIGATION CONDUCTED BY THE COMMISSION;

4. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW IN HOLDING THAT RESPONDENT ESTER ALBANO
GARCIA WAS DENIED DUE PROCESS OF LAW KNOWING THAT THE
LATTER, BEING A NOMINAL PARTY, THE LOWER COURT MAY DISPENSE
WITH HER ANSWER TO THE PETITION;

5. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR IN HOLDING THAT THE FORMAL CHARGE AND ORDER OF
PREVENTIVE SUSPENSION IS LEGAL. [8]

As the petitioner himself submits, the foregoing issues are interrelated; hence, they
shall be resolved jointly.
The petitioner vigorously contends that the letter-complaint of respondent Castillejo
should be deemed inexistent as it was not made under oath. Consequently, the formal
charge and order of preventive suspension filed against him, which stemmed from the
said letter-complaint, was, likewise, null and void. The petitioner cites Section 2,  Rule
[9]

XIV of the Omnibus Rules Implementing Book V of E.O. No. 292, which requires that an
administrative complaint against a civil service official or employee be in writing and
under oath. Moreover, the letter-complaint did not allegedly comply with Section 4(d)
 of Civil Service Commission (CSC) Resolution No. 94-0521,  also known as the
[10] [11]

Uniform Rules of Procedure in the Conduct of Administrative Investigation, and the law
then in force at the time, because it did not contain a certification of non-forum
shopping.
Since respondent Castillejos letter-complaint failed to comply with the formal
requirements of the law, the petitioner maintains that Director Mayo rightfully dismissed
the same and that respondent Alcala abused his discretion when he dismissed the
petitioner from the service.
The Court is not persuaded.
 The pertinent provisions governing the initiation of administrative complaints against
civil service officials or employees are provided in Book V of E.O. No. 292. Sections
46(c) and 48(1) and (2), Chapter 6, Subtitle A thereof read:

Sec. 46. Discipline: General provisions.

(c) Except when initiated by the disciplining authority, no complaint against a civil
service official or employee shall be given due course unless the same is in writing
and subscribed and sworn to by the complainant.

...

Sec. 48. Procedures in Administrative Cases Against Non-Presidential Appointees. (1)

Administrative proceedings may be commenced against a subordinate officer or
employee by the Secretary or head of office of equivalent rank, or head of local
government, or chiefs of agencies, or regional directors, or upon sworn, written
complaint of any other persons.

(2) In the case of a complaint filed by any other persons, the complainant shall submit
sworn statements covering his testimony and those of his witnesses together with his
documentary evidence. If on the basis of such papers a prima facie case is found not
to exist, the disciplining authority shall dismiss the case. If a prima facie case exists,
he shall notify the respondent in writing, of the charges against the latter, to which
shall be attached copies of the complaint, sworn statements and other documents
submitted, and the respondent shall be allowed not less than seventy-two hours after
receipt of the complaint to answer the charges in writing under oath together with
supporting sworn statements and documents, in which he shall indicate whether or not
he elects a formal investigation if his answer is not considered satisfactory. If the
answer is found satisfactory, the disciplining authority shall dismiss the case.

On the other hand, Section 2, Rule XIV of the Omnibus Rules Implementing Book V
of E.O. No. 292, cited by the petitioner, reads:

Sec. 2. Any person may file an administrative complaint with the Commission or any
of its proper office. Said complaint shall be in writing and under oath, otherwise, the
same shall not be given due course.

Further, Section 4(d) of CSC Resolution No. 94-0521, likewise, invoked by the
petitioner, states:

Sec. 4. Complaint in Writing and Under Oath. No complaint against a civil servant
shall be given due course, unless the same is in writing and under oath.
The complaint should be written in a clear manner, simple and concise language and
in a systematic manner as to apprise the civil servant concerned of the nature and
cause of the accusation against him and to enable him to intelligently prepare his
defense or answer.

The complaint shall also contain the following:

...

(d) a statement that no other administrative action or complaint against the same party
involving the same acts or omissions and issues has been filed before another agency
or administrative tribunal.

In the absence of any one of the above-mentioned requirements, the complaints shall
be dismissed.

It must be pointed out that, while the letter-complaint of respondent Castillejo was
not concededly verified, appended thereto were the verified criminal complaint that he
filed against the petitioner, as well as the sworn statements of his witnesses. These
documents could very well be considered as constituting the complaint against the
petitioner. In fact, this Court, through the Court Administrator, investigates and takes
cognizance of, not only unverified, but also even anonymous complaints filed against
court employees or officials for violations of the Code of Ethical Conduct.  Indeed, it is
[12]

not totally uncommon that a government agency is given a wide latitude in the scope
and exercise of its investigative powers.  After all, in administrative proceedings,
[13]

technical rules of procedure and evidence are not strictly applied.[14]

In any case, contrary to the petitioners assertion, the letter-complaint of respondent

Castillejo is not a complaint within the purview of the provisions mentioned above. In the
fairly recent case of Civil Service Commission v. Court of Appeals,  this Court held that
[15]

the complaint under E.O. No. 292 and CSC rules on administrative cases both refer to
the actual charge to which the person complained of is required to answer and indicate
whether or not he elects a formal investigation should his answer be deemed not
satisfactory.
In this case, respondent Castillejos letter-complaint contained the following
averments:

The undersigned wish to file his complaint against Mr. Florian R. Gaoiran, Head
Teacher III of Angadanan Agro-Industrial College for mauling him last August 15,
1997 at around 2:30 in the afternoon for the accused to be disciplined. The case is
now filed in the Court of Justice docketed under Criminal Case No. 97-42 for Assault
to Person in Authority.
I am Mr. Edmond M. Castillejo, Administrative Officer II of Angadanan Agro-
Industrial College, Angadanan, Isabela, furnishing you a copy of my complaint filed
in court, all under oath, for you to determine the gravity of the case administratively.
Mr. Florian R. Gaoiran is now intimidating two of the witnesses against him thats why
may I request for an immediate investigation of the case, by the commission, for him
to be suspended or probably removed from the service to avoid him from threatening
the witnesses.

Your preferential attention and favorable action in this request are earnestly requested
and will be highly appreciated. [16]

Acting thereon, the CHED referred the matter to its Office of Legal Affairs Service
and Atty. Dasig, as OIC Director thereof, conducted a fact-finding investigation on the
incident. The said letter-complaint did not, by itself, commence the administrative
proceedings against the petitioner, requiring an answer from him, but, as already
mentioned, merely triggered a fact-finding investigation by the CHED.
The Court cannot, therefore, uphold the petitioners contention that respondent
Castillejos letter-complaint was inexistent and could not be acted upon by the CHED for
to do so, would result in an absurd and restrictive interpretation of E.O. No. 292 and
effectively deprive the Government of its disciplining power over people who hold a
public trust.
[17]

In this case, it was the formal charge and order of preventive suspension filed by
Atty. Dasig against the petitioner charging him with grave misconduct and conduct
prejudicial to the best interest of the service and directing him to submit his answer in
writing and under oath that constituted the complaint.  Notably, Atty. Dasig signed the
[18]

formal charge and order of preventive suspension for the Commission in her capacity as
then OIC of the CHEDs Legal Affairs Service. As the complaint against the petitioner
was initiated by the appropriate disciplining authority, under Sections 46(c)  and 48(1),
[19]

 Chapter 6, Subtitle A, Book V of E.O. No. 292, the same need not be subscribed and
[20]

sworn to. Neither is it required that the same contain a verification of non-forum
shopping.
Section 47(2), Chapter 7 of E.O. No. 292 provides, in part, that the Secretaries and
heads of agencies and instrumentalities, provinces, cities and municipalities shall have
jurisdiction to investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Since it was the CHED,  as the [21]

disciplining authority, through Atty. Dasig, which filed the formal charge or complaint
against the petitioner, jurisdiction was properly acquired over the case.
Anent the issue on which of the two conflicting resolutions is valid, the Court agrees
with the CA that respondent Alcalas June 3, 1999 Resolution dismissing the petitioner
from the service prevails over that of Director Mayos February 20, 1999 Resolution
dismissing the administrative complaint.
First, the basis for the dismissal of the administrative complaint stated in Director
Mayos resolution, i.e., that the letter-complaint was not verified, is, as earlier discussed,
patently erroneous. Second, it was issued by Director Mayo in excess of his authority. It
is borne by the records that Atty. Dasig already filed the formal charge against the
petitioner after a fact-finding investigation had been conducted on the mauling incident
and a prima facie case had been established against him. The formal charge was filed
as early as July 27, 1998 and, on September 21, 1998, Atty. Dasig submitted her
memorandum to respondent Alcala recommending the petitioners dismissal. It was,
thus, highly irregular for Director Mayo to dismiss the administrative complaint against
the petitioner long after the formal charge had already been filed against him and the
matter was already for respondent Alcalas resolution. Third, respondent Alcala, by
reason of his position as then Chairman of the CHED, had the authority to reverse and
set aside the acts or issuances of his subordinates. His June 3, 1999 Resolution
dismissing the petitioner from the service, in effect, reversed and set aside the
Resolution dated February 20, 1999 of Director Mayo, his subordinate.
Finally, the petitioner insists that no formal investigation was conducted after the
formal charge had been filed against him in violation of Section 22 of CSC Resolution
No. 94-0521 which reads:

Section 22. Conduct of Formal Investigation. A formal investigation shall be held

after the respondent has filed his answer or after the period for filing an answer has
expired. It shall be completed within thirty (30) days from the date of the service of
the formal charge, unless the period is extended by the Commission in meritorious
cases.

Although the respondent did not elect a formal investigation, one shall nevertheless be
conducted if upon evaluation of the complaint, the answer, and the documents in
support thereof, the merits of the case cannot be judiciously resolved without
conducting such formal investigation.

The petitioners allegation is, however, belied by respondent Alcalas statement in his
resolution, to wit:

Nevertheless, during the formal investigation of the case, respondent [referring to the
petitioner] failed to submit his written counter-affidavit/answer to the charges filed
against him by the complainant so he was declared in default. This notwithstanding,
the oral testimony given during the fact-finding investigation was considered in his
(respondents) favor to enable this office to determine the veracity of the allegations
imputed against the respondent.

After weighing all the evidences [sic] submitted and the testimonies given by the
witnesses for both complainant and the respondent, this office finds substantial
evidence to hold the respondent administratively liable for violation of subparagraphs
(2) and (27) of Section 46(b), Chapter 7, Title I-A, Book V of Executive Order No.
292 otherwise known as the Administrative Code of 1987. [22]
 Significantly, the petitioner cannot rightfully claim that he was denied procedural due
process. What is repugnant to due process is the denial of the opportunity to be heard.
 The petitioner was undoubtedly afforded the opportunity to present his side as he was
[23]

directed to file his written answer to the formal charge against him. He opted not to do
so. He cannot now feign denial of due process.
Under Section 22, Rule XIV of the Omnibus Rules Implementing Book V of E.O. No.
292, grave misconduct on first offense is punishable by dismissal. On the other hand,
conduct grossly prejudicial to the best interest of the service on first offense is
punishable by suspension for six months and one day to one year.
In fine, the appellate court committed no reversible error in upholding respondent
Alcalas Resolution of June 3, 1999 finding the petitioner guilty of grave misconduct and
conduct prejudicial to the best interest of the service and dismissing him therefrom.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated
September 10, 2001 of the Court of Appeals in CA-G.R. SP No. 61477 is AFFIRMED in
toto.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

[1]
 Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Romeo A.
Brawner and Mariano C. Del Castillo, concurring.
[2]
 Now known as the Isabela State University (ISU) Angadanan Campus after it was integrated to the ISU.
[3]
 Rollo, p. 89.
[4]
 Id. at 55-56.
[5]
 Infra.
[6]
 Also known as the Administrative Code of 1987.
[7]
 Rollo, p. 86.
[8]
 Id. at 14-15.
[9]
 Infra.
[10]
 Infra.
[11]
 This has now been superseded by CSC Resolution No. 991936, also known as the Uniform Rules on
Administrative Cases in the Civil Service, which took effect on August 31, 1999.
[12]
 Montemayor v. Bundallan, 405 SCRA 264 (2003).
[13]
 Id. at 270.
[14]
 Id.
[15]
 G.R. No. 147009, March 11, 2004.
[16]
 Rollo, p. 32.
[17]
 Civil Service Commission v. Court of Appeals, supra.
[18]
 See note 3.
[19]
 Supra.
[20]
 Supra.
[21]
 Under Republic Act No. 7722, entitled An Act Creating the Commission on Higher Education,
Appropriating Funds Therefor and For Other Purposes, the CHED was expressly declared to be
independent of the Department of Education, Culture and Sports (DECS), and attached to the
Office of the President for administrative purposes only (Section 3). It was approved on May 18,
1994.
[22]
 Rollo, p. 54.
[23]
 Escleo v. Dorado, 385 SCRA 554 (2002).

EN BANC
 
CIVIL SERVICE COMMISSION, G.R. No. 155784
NATIONAL CAPITAL REGION,
Petitioner,
Present:
DAVIDE, JR., C.J.,
PUNO,
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
RANULFO P. ALBAO,
Respondent. Promulgated:
 
October 13, 2005
x-----------------------------------------------------------------------------------------x
 
 
DECISION
 
AZCUNA, J.:
 
 
This is a petition for review on certiorari of the Decision of the Court of
Appeals in CA-G.R. SP No. 64671 promulgated on April 22, 2002 and its
Resolution promulgated on September 26, 2002, denying the motion for
reconsideration of petitioner Civil Service Commission, National Capital
Region (CSC-NCR). The Decision of the Court of Appeals annulled and set
aside Resolutions Nos. 001826 and 010315 of the Civil Service Commission.
 
The antecedents[1] of the case are as follows:
 
On September 1, 1998, the Office of the Vice President of the Republic
of the Philippines issued an original and permanent appointment[2] for the
position of Executive Assistant IV to respondent Ranulfo P. Albao.
Respondent was then a contractual employee at said Office.[3]
 
In a letter[4] dated September 28, 1998 addressed to the Director of the
Civil Service Commission Field Office, Manila, the Office of the Vice
President requested the retrieval of the said appointment paper. Instead of
heeding the request, petitioner CSC-NCR disapproved the appointment.
 
On October 5, 1998, petitioner issued an Order[5] holding that it has
found, after a fact-finding investigation, that a prima facie case exists against
respondent Albao for Dishonesty and Falsification of Official Documents,
committed as follows:
 
1.                                                      That in support of his permanent appointment as
Executive Assistant IV, in the Office of the Vice-President, he stated
in his Personal Data Sheet (PDS) accomplished on July 1, 1998 that
he took and passed the Assistant Electrical Engineer Examination
held on October 15 and 16, 1988 with a rating of 71.64%;
 
 2.                                                      To support his claim, he submitted a Report of Rating
showing he obtained a rating of 71.64% during the aforesaid
Assistant Electrical Engineering Examination, all purportedly
issued by the Professional Regulation Commission (PRC); and
 
3.                                                      That the Professional Regulation Commission (PRC)
has informed CSC-NCR that the name Ranulfo P. Albao does not
appear in the Table of Results and Masterlists of examinees of the
Board of Electrical Engineering which contain the names of those
who took the Assistant Electrical Engineer Examination given in
October, 1988; and
 
4.                                                      That the examinee number appearing in his Report of
Rating is assigned to one Bienvenido Anio, Jr.[6]
 
 
After filing his Answer, respondent Albao filed on February 18,
1999 an Urgent Motion to Resolve the issue of whether or not the Civil
Service Commission has original jurisdiction over the administrative case.
Respondent contended that the Commission has no jurisdiction over the
same for the following reasons:
 
(1)                               The permanent appointment issued to him never became
effective, even if it was later disapproved, because he never assumed such
position in the first place.
 
Moreover, he is already out of government service since he resigned
from his position effective at the closing hour of October 30, 1998.
 
(2)                               As he is no longer with the civil service, the Commission
has no disciplinary jurisdiction over him as a private person.

(3)                               While it is true that the Commission has original

disciplinary jurisdiction over all its officials and employees and cases
involving civil service examination anomalies or irregularities (Sec. 28,
Omnibus Rules[7] of 1991), as well as over sworn complaints directly filed
before it against any other official or employee (Sec. 29, Omnibus Rules of
1991), the administrative case commenced against him did not fall under
any of those instances.
 

(4) Since the Commission has no jurisdiction to institute the administrative

case, it cannot delegate the same to the CSC-NCR.

 
On August 11, 2000, the Civil Service Commission rendered
Resolution No. 001826, the dispositive portion of which reads:
 
WHEREFORE, the Commission hereby rules that the Civil Service
Commission - National Capital Region has jurisdiction over disciplinary
cases against employees of agencies, local or national for offenses
committed within its geographical area.[8]
 
 
Respondent filed a motion for reconsideration, which was denied by
the Civil Service Commission on February 1, 2001, in Resolution No.
010315, thus:
 
 
WHEREFORE, the instant Motion for Reconsideration is hereby
DENIED. The Civil Service Commission - National Capital Region is
hereby ordered to continue with the formal investigation of Ranulfo
Albao.[9]
 
 
Respondent filed a petition for review before the Court of Appeals
alleging that the Civil Service Commission committed grave abuse of
discretion in issuing the said Resolutions.
 
The Court of Appeals found merit in the petition. It held that based
on Executive Order No. 292, otherwise known as the Administrative Code
of 1987, particularly Section 12 (11), Section 47 (1), (2) and Section 48, Title 1
(A), Book V thereof, the CSC-NCR does not have jurisdiction to investigate
and decide the case of respondent. Consequently, the CSC-NCR exceeded
its authority in initiating the administrative case against him.
 
 
 The dispositive portion of the Decision of the Court of Appeals,
dated April 22, 2002, reads:
 
WHEREFORE, the Petition is hereby GRANTED, and as a
consequence, Resolution Nos. 001826 and 010315, dated August 11, 2000,
and February 1, 2001, respectively, of the Civil Service Commission, are
hereby ANNULLED and SET ASIDE. No costs.
 
SO ORDERED.[10]
 
 
The motion for reconsideration filed by petitioner was denied by the
Court of Appeals in a Resolution promulgated on September 26, 2002.
 
Hence, this petition.
 
Petitioner raises the following issues:
 
1.                               WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FINDING THAT CSC-NCR EXCEEDED ITS JURISDICTION
WHEN IT INSTITUTED THE ADMINISTRATIVE PROCEEDINGS
AGAINST HEREIN RESPONDENT.
 
2.                               WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FINDING THAT THE POWER CONFERRED UPON THE
PETITIONER TO HEAR AND DECIDE ADMINISTRATIVE
CASES DOES NOT INCLUDE THE POWER TO ITSELF INITIATE
AND PROSECUTE SAID CASES.[11]
 
 
The main issue in this case is whether or not the Civil Service
Commission has original jurisdiction to institute the instant administrative
case against respondent Albao through its regional office, the CSC-NCR.
 
Petitioner argues that as the central personnel agency of the
government, it is expressly conferred the power and authority to initiate
the proceedings herein involved against a public official and employee. It
asserts that such authority is contained in Section 12 (11), (16) in relation to
Section 16 (15 [c]), Title 1(A), Book V of Executive Order No. 292, thus:
 
 
Section 12. Powers and Functions -- The Commission shall have the
following powers and functions:
 
...
 
(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. . . .[12]
 
...
 
(16)                       Delegate authority for the performance of any function
to departments, agencies and offices where such function
may be effectively performed;
...
 
Sec. 16. Offices in the Commission. -- The Commission shall have the
following offices:
...
 
(15)        The Regional and Field Offices.-- . . . . Each Regional Office shall
have the following functions:
 
...
 
(c)    Perform such other functions as may be delegated
by the Commission.
 
 
 
Petitioner contends that Section 12 (11) above categorically states that
the Commission has the power to hear and decide administrative cases
instituted byor brought before it directly or on appeal.[13] As such, when
the Commission, in the course of the performance of its official and other
duties, comes to know of any transgression committed by a government
employee, it can initiate the necessary proceedings. In this case, it initiated
the administrative proceedings against respondent after the discovery of
the latters spurious eligibility. Hence, petitioner contends that the Court of
Appeals erred in ruling that it exceeded its jurisdiction in instituting the
administrative case against respondent.
  
Settled is the rule that jurisdiction is conferred only by the
Constitution or the law.[14] Republic v. Court of Appeals [15] also enunciated
that only a statute can confer jurisdiction on courts and administrative
agencies.
 
Article IX-B, Section 3 of the Constitution declares the Civil Service
Commission as the central personnel agency of the Government, thus:
 
Section 3. The Civil Service Commission, as the central personnel
agency of the Government, shall establish a career service and adopt
measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It shall strengthen the
merit and rewards system, integrate all human resources development
programs for all levels and ranks, and institutionalize a management
climate conducive to public accountability. It shall submit to the President
and the Congress an annual report on its personnel programs.
 
 
 
Section 12, Title 1 (A), Book V of EO No. 292 enumerates the powers
and functions of the Civil Service Commission, one of which is its quasi-
judicial function under paragraph 11, which states:
 
Section 12. Powers and Functions -- The Commission shall have the
following powers and functions:
 
...
 
(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. . . .
[16]

 
 
Section 47, Title 1 (A), Book V of EO No. 292, on the other hand,
provides, as follows:
SEC. 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 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.
 
(2) The Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities shall have jurisdiction to
investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction. Their decisions shall be
final in case the penalty imposed is suspension for not more than thirty
days or fine in an amount not exceeding thirty days salary. In case the
decision rendered by a bureau or office head is appealable to the
Commission, the same may be initially appealed to the department and
finally to the Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which case the same
shall be executory only after confirmation by the Secretary concerned. [17]
 
 
Furthermore, Section 48, Title 1(A), Book V of EO No. 292 provides
for the procedure in administrative cases against non-presidential
appointees, thus:
 
SEC. 48. Procedure in Administrative Cases Against Non-Presidential
Appointees. - (1) Administrative proceedings may be commenced against a
subordinate officer or employee by the Secretary or head of office of
equivalent rank, or head of local government, or chiefs of agencies, or
regional directors, or upon sworn, written complaint of any other person.
 
 
Respondent Albao was a contractual employee in the Office of the
Vice President before his appointment to a permanent position, which
appointment was, however, requested to be retrieved by the Office of the
Vice President and at the same time disapproved by the Civil Service
Commission.
 
 Pursuant to Section 47 (1), (2) and Section 48 above, it is the Vice
President of the Philippines, as head of office, who is vested with
jurisdiction to commence disciplinary action against respondent Albao.
 
Nevertheless, this Court does not agree that petitioner is helpless to
act directly and motu proprio, on the alleged acts of dishonesty and
falsification of official document committed by respondent in connection
with his appointment to a permanent position in the Office of the Vice
President.
 
It is true that Section 47 (2), Title 1 (A), Book V of EO No. 292 gives
the heads of government offices original disciplinary jurisdiction over their
own subordinates. Their decisions shall be final in case the penalty
imposed is suspension for not more than thirty days or fine in an amount
not exceeding thirty days salary. It is only when the penalty imposed
exceeds the aforementioned penalties that an appeal may be brought
before the Civil Service Commission which has appellate jurisdiction over
the same in accordance with Section 47 (1) Title 1(A), Book V of EO No.
292, thus:
SEC. 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 fine in
an amount exceeding thirty days salary, demotion in rank or salary or
transfer, removal or dismissal from office. . . . [18]
 
 
The present case, however, partakes of an act by petitioner to protect
the integrity of the civil service system, and does not fall under the
provision on disciplinary actions under Sec. 47. It falls under the provisions
of Sec. 12, par. 11, on administrative cases instituted by it directly. This is
an integral part of its duty, authority and power to administer the civil
service system and protect its integrity, as provided in Article IX-B, Sec. 3
of the Constitution, by removing from its list of eligibles those who falsified
their qualifications. This is to be distinguished from ordinary proceedings
intended to discipline a bona fide member of the system, for acts or omissions
that constitute violations of the law or the rules of the service.
 
 WHEREFORE, the petition is GRANTED and the Decision of the
Court of Appeals in CA-G.R. SP No. 64671 and its Resolution promulgated
on September 26, 2002 are REVERSED and SET ASIDE and petitioner is
declared vested with the power to institute the administrative proceedings
against respondent for alleged falsification of eligibility.
 
No costs.
 
SO ORDERED.
 
 
 
ADOLFO S. AZCUNA
Associate Justice
 
 

WE CONCUR:
 
 
HILARIO G. DAVIDE JR.
Chief Justice

REYNATO S. PUNO ARTEMIO V. PANGANIBAN

Associate Justice Associate Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

 Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice

 
 
CERTIFICATION
 
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.
 
 
HILARIO G. DAVIDE, JR. Chief Justice
HILARIO G. DAVIDE JR.
Chief Justice
 
 
 
 
 
 
 
 
 
 
 

[1]
 CA Decision, Rollo, pp. 25-26.
[2]
 Annex D, CA Rollo, p. 25.
[3]
 Resolution No. 001826, CA Rollo, p. 15.
[4]
 Annex C, CA Rollo, p. 24.
[5]
 Annex E, CA Rollo, p. 26.
[6]
 Ibid.
[7]
 Omnibus Rules Implementing Book V of Executive Order No, 292 and Other Pertinent Civil Service
Laws.
[8]
 CA Rollo, p, 17.
[9]
 Id. at 23.
[10]
 Rollo, p. 30.
[11]
 Id. at 15-16.
[12]
 Emphasis supplied.
[13]
 Emphasis supplied.
[14]
 Pimentel v. Commission on Elections, Nos. 53581-83, December 19, 1980, 101 SCRA 769, 777.
[15]
 G.R. No. 122256, October 30, 1996, 263 SCRA 758, 764.
[16]
 Emphasis supplied.
[17]
 Emphasis supplied.
[18]
 Emphasis supplied.

SECOND DIVISION

[G.R. No. 159190. June 30, 2005]

CAYETANO A. TEJANO, JR., petitioner, vs. THE HON. OMBUDSMAN

and the HON. SANDIGANBAYAN, respondents.

DECISION
CHICO-NAZARIO, J.:

This petition for certiorari under Rule 65 of the Rules of Court, with application for
temporary restraining order, seeks to nullify the Ombudsmans disapproval of the
memorandum[1] dated 03 November 1999 of Special Prosecutor Jesus A. Micael of the
Office of the Special Prosecutor recommending the dismissal of Criminal Case No.
21654, as well as the memorandum [2]dated 09 June 2003 denying petitioners motion for
reconsideration.

The Facts

The instant petition stemmed from the report of Philippine National Bank (PNB)
Resident Auditor Alexander A. Tan, dated 15 October 1992, on his investigation
regarding an alleged unfunded withdrawal in the amount of P2.2 million by V&G Better
Homes Subdivision (V&G) under Savings Account No. 365-5355-6-4.
The report, as summarized by Special Prosecution Officer III Jesus A. Micael, is as
follows:[3]

. . . [I]n the morning of 17 July 1992, Emilio P. Montesa (Bank Executive Officer of
PNB Cebu) handed a note to Jane Rita Jecong (Cashier) instructing her to include her
cash requisition for the day from Central Bank Cebu, the amount of P2.2 M at
P1,000.00 denomination; that on 20 July 1992 at about past 10:00 A.M., Juanito Mata
(Cashier III), upon the instruction of Cayetano A. Tejano Jr. (Vice President and
Branch Manager of PNB Cebu), took the P2.2 M from Ms. Jecong and delivered the
same to Mr. Tejano; that at about noontime of same day, Mr. Mara handed to Ms.
Jecong a pre-signed withdrawal slip against SA No. 365-535506-4 under the name of
V & G Better Homes for the same amount to replace the cash withdrawn and to serve
as cash-on-hand at the end of the days transaction; that the withdrawal slip was
approved by Mr. Tejano and was postdated 21 July 1992; that as of 20 July 1992 V &
G Better Homes SA No. 365-535506-4 has only P33,436.78; that in the afternoon of
20 July 1992 the amount of P2,336,563.32 (consisting of P2,200,000.00 in cash;
P100,000.00 in check; and P36,563.22 in withdrawal slip) was received by Teller
Mary Ann Aznar as payment for the loan of V & G Better Homes for which PNB
Official Receipt No. 952981E was issued; that the transaction was recognized as an
increase in PNB Cebu Branchs cash-on-hand and a decrease in the loan account of V
& G Better Homes; that the PNB Cebu Credit Committee approved the loan at the rate
of 23% lower than the 26% interest rate on its first renewal and 27% on its second
renewal; that the loan proceeds was credited to the account of V & G Better Homes on
21 July 1992, the same day that the withdrawal slip of P2.2 M was taken by Mr.
Montesa from Ms. Jecong and given to Irene Abellanosa to be taken as her transaction
for the day; and that upon the instruction of Montesa, Savings Account No. 365-
535506-4 of V & G Better Homes was debited and the withdrawal slip was validated
by Teller Abellanosa although no actual cash withdrawal was made.

The report of Resident Auditor Alexander A. Tan implicated Vice President

Cayetano A. Tejano, Jr., the petitioner herein, Executive Officer Emilio Montesa, and
Supervising Branch Teller Jane Rita Jecong, all of the PNB, Cebu City Branch,
including Juana dela Cruz and Vicente dela Cruz of V&G, as persons involved in the
irregular withdrawal of P2.2 million of PNB funds.
In an order dated 22 December 1992, the Office of the Deputy Ombudsman for the
Visayas ordered Tejano, Montesa, Jecong, Juana dela Cruz and Vicente dela Cruz to
file their respective counter-affidavits.[4]
In a resolution dated 29 March 1993, Graft Investigation Officer Edgardo G. Canton
recommended the filing of the proper information for violation of Section 3(e) of
Republic Act No. 3019,[5] as amended, against petitioner Cayetano A. Tejano, Jr., Juana
dela Cruz and Vicente dela Cruz of V&G. [6] The case against Montesa and Jecong was
dismissed for lack of evidence. The resolution was approved by Deputy Ombudsman for
Visayas Arturo C. Mojica and then Ombudsman Conrado M. Vasquez.
The resolution was thereafter referred for review to Special Prosecutor III Orlando I.
Ines of the Office of the Special Prosecutor.
In a Memorandum[7] dated 25 October 1994, Ines affirmed the resolution of Graft
Investigation Officer Edgardo G. Canton.
On 28 October 1994, Deputy Special Prosecutor Jose De G. Ferrer recommended
the approval of the memorandum of Special Prosecution Officer Ines.
On 08 November 1994, Aniano A. Desierto, then the Special Prosecutor, concurred
in the approval of Ferrer.[8] Ombudsman Conrado M. Vasquez concurred thereto on 11
November 1994.
Subsequently, on 24 November 1994, an Information for violation of Section 3(e) of
Rep. Act No. 3019, as amended, was filed before the Sandiganbayan, and docketed as
Criminal Case No. 21654.
On 08 December 1994, petitioner filed with the Sandiganbayan an Urgent Motion
for a Period of Time to File Motion for Reinvestigation.
In an order dated[9] 12 December 1994, the Sandiganbayan granted the motion for
reinvestigation.
On 22 December 1994, petitioner filed his motion for reinvestigation in the Office of
the Special Prosecutor.
On 20 April 1995, the Sandiganbayan ordered the Office of the Special Prosecutor
to conduct the reinvestigation.[10] The reinvestigation was assigned to Special
Prosecution Officer III Jesus Micael.
Convinced that no probable cause existed to indict petitioner Tejano, and spouses
Juana and Vicente dela Cruz, Special Prosecutor Micael, in a memorandum [11] dated 03
November 1999, recommended the dismissal of the case. The recommendation was
approved by Deputy Special Prosecutor Robert E. Kallos and concurred in by Special
Prosecutor Leonardo P. Tamayo.
On 10 December 1999, Ombudsman Aniano A. Desierto, who earlier participated in
the initial preliminary investigation as Special Prosecutor, disapproved the
recommendation for the dismissal of the case with the marginal note assign the case to
another prosecutor to prosecute the case aggressively.
On 02 February 2000, Special Prosecutor Micael filed a Manifestation, to which was
attached a copy of his memorandum, informing the Sandiganbayan of the disapproval
by Ombudsman Desierto of his recommendation to dismiss the case.
On 10 February 2000, petitioner filed a Motion for Reconsideration of the
disapproval by Ombudsman Desierto of the recommendation of Micael.
Apparently, petitioners motion for reconsideration was not resolved on the merits
because on 27 June 2000, Special Prosecution Officer III Joselito R. Ferrer filed a
Motion to Set the Case for Arraignment alleging therein that the prosecution did not give
due course to the motion for reconsideration on the ground that it was the second
motion which is prohibited under the Ombudsman Act of 1989. He added that the
results of the reinvestigation were already submitted to the respondent court before
receiving the motion for reconsideration.[12]
Petitioner manifested before the Sandiganbayan the Office of the Special
Prosecutors failure to resolve his motion for reconsideration. Thus, in a
resolution[13] dated 24 March 2003, the respondent court directed the Office of the
Ombudsman to resolve the said motion.
In a memorandum[14] dated 09 June 2003, Special Prosecutor Joselito R. Ferrer
recommended the denial of the motion for reconsideration filed by petitioner. Deputy
Special Prosecutor Robert E. Kallos changed his previous position and recommended
that the memorandum for the dismissal of the motion for reconsideration be approved,
with Special Prosecutor Dennis M. Villa-Ignacio concurring in the denial.
On 14 July 2003, Ombudsman Simeon V. Marcelo, who succeeded Ombudsman
Desierto when he retired, approved Joselito Ferrers memorandum recommending the
denial of the motion for reconsideration.
Petitioner thus filed the instant petition with prayer for the issuance of a temporary
restraining order to enjoin the Sandiganbayan from taking further action in Criminal
Case No. 21654.
On 25 August 2003, the First Division of this Court issued the temporary restraining
order prayed for.
On 28 July 2004, the instant petition was transferred to the Second Division of this
Court.

Issues
 Petitioner raises the following issues:
I

WHETHER OR NOT RESPONDENT OFFICE OF THE OMBUDSMAN

COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT DISAPPROVED
THE EARLIER RECOMMENDATION FOR THE DISMISSAL OF THE CASE
AGAINST ALL THE ACCUSED WITHOUT ANY COGENT OR VERIFIABLE
REASON AMOUNTING TO LACK OF JURISDICTION WHEN THEY:

1. THE OFFICE OF THE OMBUDSMAN ABUSED ITS DISCRETION IN THE

DISAPPROVAL OF THE RESOLUTION DATED NOVEMBER 3, 1999 AGAINST
ALL ACCUSED FOR LACK OF PROBABLE CAUSE AS MANDATED UNDER
SECTION 13 R.A. 6770 IN RELATION TO SECTION 3, RULE 112 OF THE
RULES ON CRIMINAL PROCEDURE.

2. THE OFFICE OF SPECIAL PROCECUTOR DID NOT DETERMINE THE

EXISTENCE OF PROBABLE CAUSE IN A RESOLUTION DENYING
PETITIONERS MOTION FOR RECONSIDERATION FOR APPROVAL BY THE
NEW OMBUDSMAN.

II

WHETHER OR NOT THE CASE FILED AGAINST THE ACCUSED IS A CLEAR

CASE OF PERSECUTION AND NOT PROSECUTION CONTEMPLATED
UNDER R.A. 3019, AS AMENDED, OTHERWISE KNOWN AS THE ANTI-
GRAFT AND CORRUPT PRACTICES ACT, REPUBLIC ACT NO. 1374 AND
CHAPTER II, SECTION 2, TITLE VII, BOOK II OF THE REVISED PENAL
CODE.

III

WHETHER OR NOT THE HONORABLE OMBUDSMAN HAS JURISDICTION

OVER THE CASE.

Ruling of the Court

Quite apart from the above, we find a focal issue apparently glossed over by the
parties - whether or not Ombudsman Desierto committed grave abuse of discretion in
disapproving the 03 November 1999 memorandum of Special Prosecutor Jesus Micael
recommending the dismissal of Criminal Case No. 21654 against petitioner Tejano, and
spouses Juana and Vicente dela Cruz of V&G for violation of Section 3(e) of Rep. Act
No. 3019, where he had earlier participated in the preliminary investigation of the said
criminal case recommending the filing of the information.
This Court has been consistent in holding that it will not interfere with the
Ombudsmans exercise of his constitutionally mandated investigatory and prosecutory
powers, and respect the initiative and independence inherent in the Ombudsman who
beholden to no one, acts as the champion of the people and the preserver of the
integrity of public service.[15] Such discretionary power of the Ombudsman is beyond the
domain of this Court to review, save in cases where there is clear showing of grave
abuse of discretion amounting to lack or excess of jurisdiction of the latter.
Grave abuse of discretion is such capricious and whimsical exercise of judgment on
the part of the public officer concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be so patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at
all in contemplation of law as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility. [16]
Ombudsman Desierto, in this case, committed grave abuse of discretion. Petitioner
attributes partiality on the part of Ombudsman Desierto for having participated in the
reinvestigation of the instant case despite the fact that he earlier participated in the
initial preliminary investigation of the same when he was a Special Prosecutor by
concurring in the recommendation for the filing of the information before the
Sandiganbayan.
We agree with the petitioner. Steadfastly, we have ruled that the officer who reviews
a case on appeal should not be the same person whose decision is under
review. [17] In Zambales Chromite Mining Company v. Court of Appeals, [18] the decision of
the Secretary of Agriculture and Natural Resources was set aside by this Court after it
had been established that the case concerned an appeal of the Secretarys own
previous decision, which he handed down while he was yet the incumbent Director of
Mines. We have equally declared void a decision rendered by the Second Division of
the National Labor Relations Commission, because one of its members, Commissioner
Raul Aquino, participated in the review of the case which he had earlier decided on as a
former labor arbiter.[19] Likewise, this Court struck down a decision of Presidential
Executive Assistance Jacobo Clave over a resolution of the Civil Service Commission,
in which he, then concurrently its Chairman, had earlier concurred. [20]
Having participated in the initial preliminary investigation of the instant case and
having recommended the filing of an appropriate information, it behooved Ombudsman
Desierto to recuse himself from participating in the review of the same during the
reinvestigation. He should have delegated the review to his Deputies pursuant to
Section 15 of Rep. Act No. 6770, which provides:

Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:

...
(10) Delegate to the Deputies, or its investigators or representatives such authority or
duty as shall ensure the effective exercise or performance of the powers, functions and
duties herein or hereinafter provided; . . .

In earlier recommending the filing of information, then Special Prosecutor Desierto

was already convinced, from that moment, that probable cause exists to indict the
accused. It becomes a farfetched possibility that in a subsequent review of the same,
Ombudsman Desierto would make a turnabout and take a position contradictory to his
earlier finding.
Due process dictates that one called upon to resolve a dispute may not review his
decision on appeal.[21] We take our bearings from Zambales Chromite Mining Co. v.
Court of Appeals[22] which succinctly explained that:

In order that the review of the decision of a subordinate officer might not turn out to
be farce, the reviewing officer must perforce be other than the officer whose decision
is under review; otherwise, there could be no different view or there would be no real
review of the case. The decision of the reviewing officer would be a biased view;
inevitably, it would be the same view since being human, he would not admit that he
was mistaken in his first view of the case.

Cojuangco, Jr. v. Presidential Commission on Good Government [23] concedes the

applicability of the prohibition on the reviewing officer to handle a case he earlier
decided, thus:

Where the circumstances do not inspire confidence in the objectivity and impartiality
of the judge, such judge should inhibit voluntarily or if he refuses, he should be
prohibited from handling the case. A judge must not only be impartial but must also
appear impartial as an assurance to the parties that his decision will be just. His
actuation must inspire that belief. This is an instance when appearance is as important
as reality.

The same rule of thumb should apply to an investigating officer conducting a

preliminary investigation. This is the reason why under Section 1679 of the former
Revised Administrative Code, the Secretary of Justice, who has supervision over the
prosecution arm of the government, is given ample power to designate another
prosecutor to handle the investigation and prosecution of a case when the prosecutor
handling the same is otherwise disqualified by personal interest, or is unable or fails to
perform his duty. (Underlining supplied)

The fact that the motion for reconsideration of Ombudsman Desiertos disapproval of
the 03 November 1999 memorandum of Special Prosecutor Jesus Micael
recommending the dismissal of Criminal Case No. 21654 was denied by another
reviewing officer, Ombudsman Marcelo, does not cure the infirmity of Ombudsman
Desiertos actuation. As stressed in Singson v. NLRC:[24]

. . . The infirmity of the resolution was not cured by the fact that the motion for
reconsideration of the petitioner was denied by two commissioners and without the
participation of Commissioner Aquino. The right of petitioner to an impartial review
of his appeal starts from the time he filed his appeal. He is not only entitled to an
impartial tribunal in the resolution of his motion for reconsideration. Moreover, his
right is to an impartial review of three commissioners. The denial of petitioners right
to an impartial review of his appeal is not an innocuous error. It negated his right to
due process. (Underlining supplied)

With the foregoing conclusion, we deem it unnecessary to discuss the other issues
raised by petitioner.
WHEREFORE, the Ombudsmans disapproval of the memorandum dated 03
November 1999, where Prosecutor Jesus A. Micael of the Office of the Special
Prosecutor recommended the dismissal of Criminal Case No. 21654, as well as the
memorandum dated 09 June 2003, which denied petitioners motion for reconsideration,
are SET ASIDE. The case is remanded to the Office of the Ombudsman for further
proceedings. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1]
 Records, pp. 41-46.
[2]
 Records, pp. 57-60.
[3]
 Records, pp. 41-42.
[4]
 Records, p. 144.
[5]
 Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefit, advantage or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.
[6]
 Id.
[7]
 Records, pp. 61-64.
[8]
 Id.
[9]
 Records, pp. 34-40.
[10]
 Records, p. 148.
[11]
 Records, pp. 41-46.
[12]
 Respondents Memorandum, pp. 9-10.
[13]
 Records, pp. 34-40.
[14]
 Records, pp. 57-60.
[15]
 Loquias, et al. v. Office of the Ombudsman, G.R. No. 139396 , 15 August 2000, 338 SCRA 62; Rizon v.
Desierto, G.R. No. 152789, 21 October 2004; Yu v. Sandiganbayan, G.R. No. 128466, 31 May
2001, 358 SCRA 353.
[16]
 Domondon v. Sandiganbayan, G.R. No. 129904, 16 March 2000, 328 SCRA 292, citing Cuison v.
Court of Appeals, G.R. No. 128540, 15 April 1998, 289 SCRA 159.
[17]
 Government Service Insurance System v. Court of Appeals, G.R. No. 128523 , 28 September 1998,
296 SCRA 514; Singson v. NLRC, G.R. No. 122389, 19 June 1997, 274 SCRA 358; Icasiano v.
Office of the President, G.R. No. 49855, 15 May 1992, 209 SCRA 25; Zambales Chromite Mining
Co. v. Court of Appeals, G.R. No. L-49711, 07 November 1979, 94 SCRA 261.
[18]
 Id.
[19]
 Singson v. NLRC, supra, note 17.
[20]
 Government Service Insurance System v. Court of Appeals, supra, note 17, citing Anzaldo v. Clave,
G.R. No. L-54597, 15 December 1982, 119 SCRA 353.
[21]
 Government Service Insurance System v. Court of Appeals, supra, note 17.
[22]
 Supra, note 17, p. 267.
[23]
 G.R. Nos. 92319-20, 02 October 1990, 190 SCRA 226, 256.
[24]
 Singson v. NLRC, supra, note 17, p. 365.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 168670             April 13, 2007

OFFICE OF THE OMBUDSMAN, Petitioner, 

vs.
HEIDI M. ESTANDARTE andTHE COURT OF APPEALS, TWENTIETH DIVISION, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review of the Decision 1 of the Court of Appeals (CA) in CA-G.R. SP
No. 85585 dated June 14, 2005 which set aside the decision of the Office of the Ombudsman
(Visayas) finding respondent Heidi M. Estandarte guilty of grave misconduct.

The antecedents are as follows:

On August 17, 1998, People’s Graftwatch, through its Chairman, Dr. Patricio Y. Tan, referred to the
Office of the Ombudsman (Visayas), for immediate investigation, a complaint of the Faculty Club and
Department Heads of the Ramon Torres National High School (hereinafter the Faculty Club) against
Heidi Estandarte, the school principal. The complaint consisted of 33 allegations of improprieties
ranging from illegal handling of school funds, irregular financial transactions, perjury, and abuse of
authority.2 However, the complaint was not subscribed and sworn to by the complainant, and not
supported by the sworn statements of witnesses. The complaint also lacked a statement of non-
forum shopping as required under CSC Resolution No. 95-3099 dated May 9, 1995. 3 The
Ombudsman (Visayas) treated the matter as a request for assistance, and docketed the complaint
as RAS-VIS 98-1030.

On August 31, 1998, the Ombudsman forwarded the complaint to the Department of Education,
Culture and Sports Regional Office VI (DECS-Region VI) and the Commission on Audit (COA) for
appropriate action pursuant to Section 15(2) of Republic Act No. 6770, otherwise known as the
Ombudsman Act of 1989.4 On September 29, 1998, the DECS-Region VI found that the complaint
did not comply with the formalities under Executive Order No. 292, otherwise known as The
Administrative Code of 1987. Thus, it dismissed the complaint, without prejudice to the filing of an
appropriate one.

Undaunted, the Faculty Club filed a formal complaint – sworn and subscribed to by the complainants
– with DECS-Region VI on February 5, 1999. 5 However, in a letter6 dated February 12, 1999, the
said office dismissed the complaint outright for lack of verification and certification against forum
shopping.

On March 22, 1999, the DECS-Region VI received the requisite verification and certification. 7 This
case was entitled "Faculty and Department Heads of the Ramon Torres National High School, Bago
City v. Heidi Estandarte."

On April 19, 1999, the DECS-Region VI required Estandarte to answer the charges in
writing.8 Estandarte filed her answer to the complaint on June 7, 1999. 9 Thereafter, a Special
Investigating Committee was created to hear the case; DECS-Region VI approved the composition
of the Committee in a 1st Indorsement dated July 26, 1999. 10 The Committee issued a subpoena
duces tecum addressed to the State Auditor assigned to the case, requiring him to produce the
original copies of certain documents. The State Auditor, however, replied that he could not comply
with the subpoena because the documents are being used by the Ombudsman (Visayas) in the
criminal and administrative cases pending before it which concerned the same parties. 11

On September 17, 1999, the Committee held a pre-hearing conference. 12 It issued a 1st Indorsement
on December 6, 1999, recommending the dismissal of the case on the ground of forum shopping.

Meanwhile, the COA referred the complaint against Estandarte to the Provincial Auditor for the
Province of Negros Occidental, Crispin A. Pinaga, Jr. Pursuant thereto, Pinaga conducted an
investigation and submitted his report to the Ombudsman (Visayas). He found that Estandarte’s
actions in connection with 24 of the 33 allegations in the complaint were "within the bounds of
propriety."13 The Provincial Auditor made the following findings:

Complaint No. 2 - The collections of miscellaneous fee of Ten Pesos (P10.00) (Annex II) per student
upon enrolment which was not authorized by DECS.

As explained by the principal in her letter dated June 8, 1998, this practice had been going on when
she assumed thereat and the same has the implied permission of the PTA (Annex III).

Finding:
The imposition of this miscellaneous fee of Ten Pesos (₱10.00) is in violation of DECS Order No. 27
s. 1995 dated May 24, 1995 (Annex IV).

Complaint 19 & 24

The principal, Miss Heidi M. Estandarte bought the .38 Caliber Handgun and Shotgun which she
registered under her name, which should not be done so because the money she used to purchase
said firearm came from the student government fund.

Finding:

The firearms as alleged by the principal were intended for the use of the security guard of the
school. However, the arm dealer had secured the licenses of the firearms in the name of the
principal. These firearms had been turned-over to the School Supply Officer (Annex V).
Representations had been made for the transfer of the license to the school, Ramon Torres National
High School (Annex VI-A).

Complaint 21 & 31

She sold, kept and disbursed the income of the old newspaper with no accounting by the COA since
1994.

Complaint 23 & 25

The principal Ms. Estandarte accepted cash and in kind donations without being properly channeled
and accounted first by the property custodian and the cash without first [being] deposited in the Trust
Fund.

Finding:

Cash donations as acknowledged by Ms. Heidi Estandarte are as follows:

Source Amount
Mrs. Ma. Belen J. Elizalde
(not Phil-Am Life) (Annex VI) ₱ 10,000.00
Coca Cola Bottlers (Annex VIII) 100,000.00
Mr. Kojima (Annex IX) 53,400.00
Sales – Old Newspaper (Annex X) 3,949.00

Total ₱167,349.00
===========

The donations and the proceeds from the sale of old newspaper were personally received and
disbursed by Ms. Estandarte. However, these amounts were not acknowledged through the
issuance of official receipts. Hence the donations were not taken up in the book of accounts of the
school. Further these amounts were disbursed personally by the principal Ms. Heidi Estandarte who
acted as the procurement and disbursing officer at the same time and in violation of the applicable
law which provides to wit:

Section 63, PD 1445

Accounting for Moneys and Property received by public officials – Except as may otherwise be
specifically provided by law or competent authority all moneys and property officially received by a
public office in any capacity or upon any occasion must be accounted for as government funds and
government property. Government property should be taken up in the books of the agency
concerned at acquisition cost or an appraised value.

Section 68 PD 1445

Issuance of Official Receipt – (1) No payment of any nature shall be received by a collecting officer
without immediately issuing an official receipt in acknowledgment thereof. The receipt may be in the
form of postage, internal revenue or documentary stamps and the like, or officially numbered
receipts, subject to proper custody, accountability and audit.

Section 112 PD 1445

Recording of financial transactions – Each government agency shall record its financial transactions
and operation conformably with generally accepted accounting principles and in accordance with
pertinent laws and regulations.

In view of the foregoing findings of the Auditor, the Ombudsman (Visayas) issued the Memorandum
dated October 8, 1999, with the following recommendation:

1.) This RAS be upgraded to criminal and administrative cases against Ms. Estandarte;

2.) Provincial Auditor Crispin Pinaga, Jr. be required to submit (his) Affidavit/s or sworn
statement/s in order to substantiate his findings. The same is true with respect to the
complaints;

3.) Upon receipt of the Affidavits of Provincial Auditor Pinaga, Jr. and the complainants, a
preventive suspension order be issued against respondent Estandarte for a period as may
be warranted under the circumstance, to be determined and recommended by the
investigator to whom the administrative case may be assigned; and

4.) RAS-VIS-98-1030 be considered closed and terminated. 14

The Ombudsman (Visayas) decided to refer the administrative aspect of the case (OMB-VIS-ADM-
99-0941, entitled "COA Region 6, Office of the Provincial Auditor v. Heidi Estandarte") to the DECS-
Region VI for administrative adjudication pursuant to Section 23(2) of Rep. Act No. 6770. The
complete records of the case were forwarded to the DECS-Region VI in a letter dated November 29,
1999.15

It appeared, however, that the DECS-Region VI did not receive this referral because on December
7, 1999, it inquired on the status of RAS-VIS-98-1030 from the Ombudsman (Visayas). 16 On March
9, 2000, the Ombudsman (Visayas) inquired about the progress of the case from the DECS-Region
VI,17 and when it did not receive an answer, it sent another letter-inquiry on September 21,
2000.18 Finally, on November 22, 2000, the Ombudsman (Visayas) received a letter from the DECS-
Region VI informing it that the latter did not receive any referral concerning the case. 19 Hence, the
Ombudsman (Visayas) again forwarded the records of the case to the DECS-Region VI, which
received them on December 26, 2000. 20

The DECS-Region VI directed the consolidation of this case (COA Region 6, Office of the Provincial
Auditor v. Heidi Estandarte) with the case pending before it (Faculty and Department Heads of the
Ramon Torres National High School, Bago City v. Heidi Estandarte). 21 Thereafter, the hearing of the
case by the Special Investigating Committee resumed.

In view of the referral to DECS-Region VI, the Ombudsman (Visayas) considered OMB-VIS-ADM-
99-0941 closed and terminated in its Memorandum of November 27, 2001. 22

In a letter23 dated April 29, 2002, the Faculty Club requested the Ombudsman (Visayas) to take over
the case for speedier disposition. Ms. Lucia Jane Grecia, a member of the Faculty Club, also wrote a
letter to the Ombudsman (Visayas) complaining that she was being oppressed by Estandarte. She
likewise requested the Ombudsman (Visayas) to take over the case. Consequently, on July 5, 2002,
the Ombudsman (Visayas) informed the DECS-Region VI that it would not object if the case is
returned to it.24

On August 16, 2002, DECS-Region VI turned over the records of the case to the Ombudsman
(Visayas) for adjudication, stating that "[i]t is the impression of this Office that the complainants
intend that their case be heard by the Office of the Ombudsman and that Office had also manifested
its willingness to reassume jurisdiction of the same."25 The case was docketed as OMB-V-A-02-
0572-J.

On November 6, 2002, the Ombudsman (Visayas) set the case for preliminary conference. 26 In the
meantime, Estandarte filed an Urgent Motion to Remand27 the case to the DECS-Region VI on the
ground that jurisdiction is now exclusively vested on the latter. On December 17, 2002, the
Ombudsman (Visayas) denied the motion ratiocinating that it was not barred from assuming
jurisdiction over the complaint after the DECS-Region VI had relinquished its jurisdiction over the
same.28 Estandarte filed a motion for reconsideration of said Order, which was later denied by the
Ombudsman (Visayas).29

The preliminary conference was set on May 21, 2003. On the said date, only the counsel of COA
was present. The Ombudsman (Visayas), therefore, issued an Order stating that in view of
Estandarte’s failure to attend the scheduled hearing, she is deemed to have waived her right to a
formal investigation unless she is able to justify her absence. In an Urgent Motion for
Postponement,30 Estandarte’s counsel explained that he was due to attend a hearing in another
court on the scheduled day of the hearing. He manifested that they intended to challenge the
Ombudsman’s order denying the motion to remand the case to the DECS-Region VI through a
petition for certiorari. In its Order31 dated July 24, 2003, the Ombudsman reset the preliminary
conference to July 30, 2003.

On July 21, 2003, Estandarte filed a Motion to Suspend Proceedings on the ground that she filed a
petition for review on certiorari with the CA assailing the order denying her motion to remand the
case to the DECS-Region VI. The Ombudsman denied the motion. 32

On July 29, 2003 Estandarte filed an Urgent Motion for Postponement 33 of the hearing scheduled the
following day, and a Motion for Reconsideration with Motion for Voluntary Inhibition, assailing the
denial of her motion to suspend the proceedings. However, due to her failure to furnish the
complainants with a copy of the motion to postpone, the Ombudsman (Visayas) proceeded with the
preliminary conference with only the complainants present. Thereafter, the case was submitted for
resolution.34

In a Decision dated March 9, 2004, the Ombudsman (Visayas) found Estandarte guilty of grave
misconduct, thus:

WHEREFORE, premises considered, respondent Heidi Estandarte, Principal, Ramon Torres

National High School, Bago City, Negros Occidental, is hereby found guilty of Grave Misconduct,
and is meted the penalty of Dismissal from Service, with perpetual disqualification to hold public
office and forfeiture of all benefits and cancellation of Civil Service eligibilities. 35

The Ombudsman (Visayas) held that Estandarte’s failure to issue receipts for the donations received
in violation of Sections 63, 68, and 112 of Presidential Decree (PD) No. 1445, as well as "the
appropriation for personal use of the proceeds from the sale of the old newspapers and the
counterpart contribution of the students for diploma case," constitute grave misconduct. The act of
submitting receipts which do not prove that disputed items were purchased suggests that Estandarte
is predisposed to commit misrepresentation.36

Estandarte filed a petition for review with prayer for the issuance of a temporary restraining order/writ
of preliminary injunction with the CA. She alleged that the Ombudsman (Visayas) violated her right
to due process when her request for a formal investigation was denied; that the DECS-Region VI
has jurisdiction over the case; and that the Ombudsman (Visayas) failed to act with the cold
neutrality of an impartial judge. 37

On September 10, 2004, the CA ordered the issuance of a TRO.38 It later granted Estandarte’s
application for a writ of preliminary injunction in a Resolution 39 dated November 10, 2004.

On June 14, 2005, the CA issued the assailed Decision granting the petition and remanding the case
to the Special Investigating Committee of the DECS-Region VI. The dispositive portion of the
decision reads:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us GRANTING
the petition filed in the case at bench, SETTING ASIDE the decision rendered by the Office of the
Ombudsman (Visayas) on March 9, 2004 in OMB-V-A-02-0572-J and the order issued by it in the
same case on June 3, 2004 and ORDERING the Office of the Ombudsman (Visayas) to remand the
record of OMB-VIS-ADM-99-0941 to the Special Investigating Committee of DECS-Region VI
created on July 26, 1999 for the said committee to conduct further proceedings therein with utmost
dispatch and eventually to submit its findings and recommendations to the Director of Public Schools
for the proper disposition thereof.

IT IS SO ORDERED.40

The CA held that the Ombudsman (Visayas) acted without or in excess of jurisdiction when it took
over the case after it issued a memorandum considering the case closed and terminated and after
jurisdiction had already been vested in the Special Investigating Committee. Such act violates the
doctrine of primary jurisdiction. Once jurisdiction is acquired by or attached to a proper investigative
body or agency, such jurisdiction continues until the termination of the case. Citing Fabella v. Court
of Appeals41 and Emin v. de Leon,42 the CA held that Rep. Act No. 4670 specifically covers and
governs administrative proceedings involving public school teachers, and jurisdiction over such
cases is originally and exclusively lodged with the Investigating Committee created pursuant to
Section 9 of Rep. Act No. 4670. 43
The appellate court further held that, assuming the Ombudsman (Visayas) has jurisdiction, the
assailed decision and order would have to be set aside because Estandarte was denied her right to
substantive and procedural due process. It pointed out that she was denied the right to a formal
investigation and the opportunity to be heard. Following the Court’s ruling in Tapiador v. Office of the
Ombudsman,44 the CA held that the Ombudsman (Visayas) has no authority to directly impose the
penalty of dismissal on those who are the subject of its investigation because its power is merely
recommendatory.45

The Ombudsman, now petitioner, submits the following issues:

I.

THE OFFICE OF THE OMBUDSMAN HAS FULL ADMINISTRATIVE DISCIPLINARY

JURISDICTION OVER PUBLIC OFFICIALS AND EMPLOYEES UNDER ITS AUTHORITY,
INCLUDING THE LESSER POWER TO ENFORCE THE SANCTIONS MPOSED ON ERRING
FUNCTIONARIES, PUBLIC SCHOOL TEACHERS INCLUDED.

II.

THE RELIANCE BY THE HONORABLE COURT OF APPEALS ON THE OBITER DICTUM IN

TAPIADOR VS. OFFICE OF THE OMBUDSMAN, 379 SCRA 322 (2002) DISPOSSESING THE
OMBUDSMAN OF ITS DISCIPLINARY AUTHORITY, CONSTITUTES A GRAVE ERROR
CONSIDERING THAT: THE POWER OF THE OMBUDSMAN TO IMPLEMENT ITS JUDGMENTS
HAS ALREADY BEEN SETTLED BY NO LESS THAN THE HONORABLE COURT IN THE CASE
OF LEDESMA [VS.] COURT OF APPEALS, ET AL., 465 SCRA 437 (2005), AND FURTHER
AFFIRMED IN THE CASE OF OFFICE OF THE OMBUDSMAN VS. COURT OF APPEALS, ET AL.,
G.R. NO. 160675, PROMULGATED ON 16 JUNE 2006.

III.

THE OFFICE OF THE OMBUDSMAN DID NOT COMMIT ANY REVERSIBLE ERROR WHEN IT
TOOK OVER THE ADMINISTRATIVE ADJUDICATION OF THE DISCIPLINARY CASE AGAINST
PRIVATE RESPONDENT ESTANDARTE. AS IN POINT OF LAW IT ACQUIRED JURISDICTION
OVER THE SAID CASE WHEN THE DEPARTMENT OF EDUCATION REFERRED THE SAME TO
THE OMBUDSMAN.

IV.

CONTRARY TO THE FINDINGS OF THE APPELLATE COURT, PRIVATE RESPONDENT

ESTANDARTE WAS NOT DENIED SUBSTANTIVE AND PROCEDURAL DUE [PROCESS], AND
NEITHER WAS THE ADMINISTRATIVE PROCEEDING AGAINST HER TAINTED WITH ANY
IRREGULARITY, AS IN FACT THE OMBUDSMAN AFFORDED HER DUE PROCESS.

V.

SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE FINDINGS OF GUILT OF PRIVATE

RESPONDENT ESTANDARTE WHICH WARRANTS THE IMPOSITION ON HER OF THE
ADMINISTRATIVE PENALTY OF DISMISSAL FROM THE SERVICE. 46

Petitioner contends that the CA erred in holding that it is bereft of the authority to directly impose on
the respondent the sanction of dismissal from service. It stresses that it has full and complete
administrative disciplinary jurisdiction over public school teachers. It points out that Ledesma v.
Court of Appeals47 already declared that the ruling in the Tapiador case, that the Ombudsman has no
authority to directly dismiss an employee from government service, is merely an obiter dictum.
Therefore, it has the authority to determine the administrative liability of a public official or employee,
and direct and compel the head of office and agency concerned to implement the penalty imposed. 48

Petitioner submits that it has concurrent disciplinary jurisdiction with the DECS over the
administrative case against the respondent. Jurisdiction over the said case is not exclusive to the
DECS, as the respondent is a public official and the offense charged pertains to the performance of
her official functions. Consequently, there is no bar for it to take cognizance of the case after the
DECS referred it for administrative adjudication.49

Petitioner further avers that the Fabella case is not applicable to the present case because it does
not involve an issue of illegal constitution of any investigating committee. Rep. Act No. 4670
provides for the administrative disciplinary procedure in cases involving public school teachers
where the case is filed with the DECS.50

Petitioner contends that the respondent was given ample opportunities to rebut the charges and
defend herself from the administrative case filed against her. By her failure to comply with the order
to submit a position paper, submitting instead frivolous motions that delayed the proceedings,
respondent was deemed to have waived her right to a formal investigation. Petitioner points out that
respondent opted for a formal investigation only when the case was submitted for resolution. 51

Finally, petitioner maintains that its finding is based on more than substantial evidence. Factual
findings of administrative and quasi-judicial agencies are generally accorded not only respect but at
all times finality.52

Respondent, for her part, argues that petitioner cannot divest the DECS of its jurisdiction over the
administrative case because "once jurisdiction attaches, it continues until the termination of the
case." She posits that when the DECS assumed jurisdiction over the case, the petitioner was
effectively precluded from assuming the same jurisdiction. 53

The pivotal issue in this petition is whether or not the DECS has exclusive jurisdiction over the case.

The petition has no merit.

The jurisdiction of the Ombudsman over disciplinary cases against government employees, which
includes public school teachers, is vested by no less than Section 12, Article XI of the Constitution
which states—

Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the Government, or
any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations, and shall, in appropriate cases, notify the complainants of the action taken and the
result thereof.54

In a case of recent vintage, the Court held that the Ombudsman has full administrative disciplinary
authority over public officials and employees of the government, thus:

All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the
lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority.
These provisions cover the entire gamut of administrative adjudication which entails the authority to,
inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of
procedure, summon witnesses and require the production of documents, place under preventive
suspension public officers and employees pending an investigation, determine the appropriate
penalty imposable on erring public officers or employees as warranted by the evidence, and
necessarily, impose the said penalty. 55

However, Section 9 of Rep. Act No. 4670, otherwise known as the Magna Carta for Public School
Teachers, provides that:

Section 9. Administrative Charges. — Administrative charges against a teacher shall be heard

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

In Fabella v. Court of Appeals,56 the Court ruled that Section 9 of Rep. Act No. 4670 reflects the
legislative intent to impose a standard and a separate set of procedural requirements in connection
with administrative proceedings involving public school teachers. And in Alcala v. Villar, 57 this Court
emphasized that:

Republic Act No. 6770, the Ombudsman Act of 1989, provides that the Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries except over officials who may
be removed by impeachment or over Members of Congress, and the Judiciary. However, in Fabella
v. Court of Appeals, it was held that R.A. No. 4670, the Magna Carta for Public School Teachers,
specifically covers and governs administrative proceedings involving public school teachers. 58 1a\^/phi1.net

Undoubtedly, the DECS-Region VI first assumed jurisdiction over the administrative complaint
against the respondent. It should be recalled that when People’s Graftwatch forwarded the complaint
to the Ombudsman (Visayas), the latter treated it as a request for assistance and referred it to the
DECS-Region VI and COA for appropriate action. After it had resolved to upgrade the matter to an
administrative case, the Ombudsman decided not to take cognizance of the same and refer it,
instead, to the DECS-Region VI pursuant to Section 23(2) of R.A. 6770 which provides:

Section 23. Formal Investigation.—

xxxx

(2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary
authority for the institution of appropriate administrative proceedings against erring public officers or
employees, which shall be terminated within the period prescribed in the civil service law. Any delay
without just cause in acting on any referral made by the Office of the Ombudsman shall be a ground
for administrative action against the officers or employees to whom such referrals are addressed and
shall constitute a graft offense punishable by a fine of not exceeding five thousand (₱5,000.00).
(Emphasis supplied.)
We do not agree with petitioner’s contention that it could assume jurisdiction over the administrative
case after the DECS-Region VI had voluntarily relinquished its jurisdiction over the same in favor of
the petitioner. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance
of the parties but continues until the case is terminated. 59 When the complainants filed their formal
complaint with the DECS-Region VI, jurisdiction was vested on the latter. It cannot now be
transferred to petitioner upon the instance of the complainants, even with the acquiescence of the
DECS and petitioner. 1ªvvphi1.nét

Nonetheless, even if we hold that the Ombudsman (Visayas) had concurrent jurisdiction over the
administrative case, we would still sustain the DECS’ authority to decide the administrative case. In
one case, the Court pronounced that—

In any event, since We are not dealing with jurisdiction but mainly with venue, considering both court
concerned do have jurisdiction over the cause of action of the parties herein against each other, the
better rule in the event of conflict between two courts of concurrent jurisdiction as in the present
case, is to allow the litigation to be tried and decided by the court which, under the circumstances
obtaining in the controversy, would, in the mind of this Court, be in a better position to serve the
interests of justice, considering the nature of the controversy, the comparative accessibility of the
court to the parties, having in view their peculiar positions and capabilities, and other similar factors.
x x x x60

Considering that the respondent is a public school teacher who is covered by the provisions of Rep.
Act No. 4670, the Magna Carta for Public School Teachers, the DECS-Region VI is in a better
position to decide the matter. Moreover, the DECS has already commenced proceedings over the
administrative case by constituting the Special Investigating Committee pursuant to Section 9 of
Rep. Act No. 4670.

We are not unmindful of the Court’s ruling in Emin v. De Leon 61 reiterated in Alcala v. Villar,62 that a
party may be estopped from assailing the jurisdiction of the DECS:

As held previously, participation by parties in the administrative proceedings without raising any
objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is
rendered against them. In the case at bar, petitioner raised the issue of lack of jurisdiction for the first
time in his amended petition for review before the CA. He did not raise this matter in his Motion to
Dismiss filed before the CSC Regional Office. Notably, in his Counter-Affidavit, he himself invoked
the jurisdiction of the Commission by stating that he was "open to further investigation by the CSC to
bring light to the matter" and by further praying for "any remedy or judgment which under the
premises are just and equitable. It is an undesirable practice of a party participating in the
proceedings, submitting his case for decision, and then accepting the judgment only if favorable, but
attacking it for lack of jurisdiction, when adverse.63

However, the rulings of the Court in Alcala and de Leon are not applicable in this case. From the
very start, respondent consistently protested the referral of the case back to the Ombudsman, and
demanded that the same be remanded to the DECS. She refused to participate in the proceedings
before the Ombudsman precisely because she believed that jurisdiction was already vested on the
DECS-Region VI. Hence, she filed instead a motion to remand the case to the DECS-Region VI and
motions to postpone or suspend the proceedings. On the other hand, what was striking in the Emin
and Alcala cases was that the respondent therein actively participated in the proceedings before the
other tribunal.

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals
dated June 14, 2005 is AFFIRMED.
SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it
is hereby certified that the conclusions in the above decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

 Penned by Associate Justice Isaias P. Dicdican, with Associate Justices Vicente L. Yap and
1

Enrico A. Lanzanas, concurring; rollo, pp. 76-87.

2
 Records, p. 1.

3
 Id. at 47-48.

4
 Id. at 41-42.

5
 Id. at 107-109.
6
 CA rollo, p. 277.

7
 Records, p. 131.

8
 CA rollo, p. 78.

9
 Records, p. 133.

10
 CA rollo, p. 171.

11
 Id. at 172.

12
 Id. at 93.

13
 Records, p. 53.

14
 Id. at 85-86.

15
 Id. at 88.

16
 CA rollo, p. 173.

17
 Records, p. 89.

18
 Id. at 90.

19
 Id. at 91.

20
 CA rollo, p. 175.

21
 Id. at 176.

22
 Id. at 99.

23
 Records, p. 95.

24
 CA rollo, p. 375.

25
 Records, pp. 93-94.

26
 Id. at 159.

27
 Id. at 160-163.

28
 Id. at 167.

29
 Id. at 243.

30
 Id. at 246.
31
 Id. at 256-257.

32
 Id. at 261.

33
 Id. at 266-267.

34
 Id. at 276-277.

35
 Rollo, p. 103.

36
 Id. at 102.

37
 CA rollo, pp. 14-15.

38
 Id. at 151.

39
 Id. at 210.

40
 Rollo, p. 87.

41
 346 Phil. 340 (1997).

42
 428 Phil. 172 (2002).

43
 Rollo, pp. 83-85.

44
 429 Phil. 47 (2002).

45
 Rollo, pp. 85-86.

46
 Rollo, pp. 209-210.

47
 G.R. No. 161629, July 29, 2005, 465 SCRA 437.

48
 Rollo, pp. 211-221.

49
 Id. at 222-224.

50
 Id. at 225-227.

51
 Id. at 232 .

52
 Id. at 234.

53
 Id. at 273-281.

54
 This is substantially reproduced in Section 13 of Rep. Act No. 6770, which provides:
 Section 13. Mandate. —The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against officers
or employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants in
order to promote efficient service by the Government to the people.

 Office of the Ombudsman v. Court of Appeals, G.R. No. 160675, June 16, 2006, 491
55

SCRA 92, 116.

56
 Supra note 41.

57
 461 Phil. 617 (2003).

58
 Id. at 622-623 (Emphasis supplied).

59
 Deltaventures Resources, Inc. v. Hon. Cabato, 384 Phil. 252 (2000).

 Roa-Magsaysay v. Magsaysay, No. L-49847, July 17, 1980, 98 SCRA 592, 605-606
60

(Emphasis ours.)

61
 Supra note 42.

62
 Supra note 57.

63
 Emin v. De Leon, supra note 42, at 185-186.

SECOND DIVISION
 
RACHEL BEATRIZ RUIVIVAR, G.R. No. 165012
Petitioner,
Present:

QUISUMBING, J., Chairperson,
- versus - CARPIO-MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
OFFICE OF THE OMBUDSMAN
and DR. CONNIE BERNARDO, Promulgated:
Respondents.
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,
2004[2] dismissing the petition for certiorari filed by the petitioner
and affirming the Decision dated November 4, 2002[3] (November
4, 2002 Decision) and the Order dated February 12,
2003[4] (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, 2004[5] 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, 2002Decision, 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.
 
x x x
 
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.
Desierto[16] can only be applied when the decision of the Ombudsman is
appealable. The ruling in Fabianis not applicable to the Ombudsman rulings under
the express provisions of Section 27 of Republic Act (R.A.) No. 6770[17] and
Section 7, Rule III of Administrative Order (A.O.) No. 7 [18] 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. Desierto[24] 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 cases[27] 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. CA[29] 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.
[36]
 Thus, 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, 2003belatedly 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.
 
ARTURO D. BRION
Associate Justice
 
WE CONCUR:
 
 
 
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CONCHITA CARPIO MORALES DANTE O. TINGA

Associate Justice Associate Justice
 
 
 
 
PRESBITERO J. VELASCO, JR.
Associate Justice

 
 
 
ATTESTATION
 
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
 
 
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 
 
CERTIFICATION
 

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
 
 
REYNATO S. PUNO
Chief Justice

[1]
 Docketed as CA-G.R. SP No. 77029 and assigned to the Fourteenth Division. The assailed CA issuances were
penned by Associate Justice Magdangal de Leon and concurred in by Associate Justice Marina Buzon, as
Chairman, and Associate Justice Mariano del Castillo, as Member.
[2]
 Rollo, pp. 36-44.
[3]
 Id., pp. 57-67.
[4]
 Id., pp. 76-81.
[5]
 Id., pp. 46-47.
[6]
 See: paragraph 8 of the private respondents Affidavit-Complaint; id., p. 48.
[7]
 They are Jubair Macaumbos, Merlie Bando and Jesse Cosme whose affidavits were not immediately furnished the
petitioner; id., pp. 72-74.
[8]
 See: paragraph 2 of the petitioners Counter Affidavit; id., p. 50.
[9]
 They are Corazon Javier and Conchita Ramos; id., pp. 52-53.
[10]
 See: the petitioners Memorandum; id., pp. 54-56.
[11]
 Id., p. 68.
[12]
 See: Order dated January 17, 2003; id., p. 70.
[13]
 Id., p. 79.
[14]
 Id., pp. 42-43.
[15]
 Id., pp. 42-44.
[16]
 G.R. No. 129742, September 16, 1998, 295 SCRA 470.
[17]
 SEC. 27. Effectivity and Finality of Decisions. (1) All provisionary orders of the Office of the Ombudsman are
immediately effective and executory.
x x x
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive.
Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of
the written notice of the order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.
x x x
[18]
 Section 7. Finality and execution. Where respondent is absolved of the charge, and in case of conviction where
the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine
equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases,
the decision may be appealed to the CA on a verified petition for review under the requirements and
conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written
Notice of the Decision or Order denying the Motion for Reconsideration.
[19]
 Rollo, pp. 145-169.
[20]
 Supra note 16.
[21]
 Section 4. Period of appeal. The appeal shall be taken within fifteen (15) days from notice of the award,
judgment, final order or resolution, or from the date of its last publication, if publication is required by law
for its effectivity, or of the denial of petitioners motion for new trial or reconsideration duly filed in
accordance with the governing law of the court or agency a quo. x x x
[22]
 Rollo, pp. 206-210.
[23]
 Id., p. 197.
[24]
 Supra note 16.
[25]
 Section 1, Rule 45 of the Rules of Court, as amended by A.M. 07-7-12-SC, December 27, 2007.
[26]
 Supra, note 16, p. 491.
[27]
 Tirol v. Sandiganbayan, G.R. No. 135913, November 4, 1999, 317 SCRA 779, 785; Lapid v. CA, G.R. No.
142261, June 29, 2000, 334 SCRA 738, 750; Macalalag v. Ombudsman, G.R. No. 147995, March 24,
2004, 424 SCRA 741, 745; Perez v. Ombudsman, G.R. No. 131445, May 27, 2004, 429 SCRA 357,
361; Nava v. NBI, G.R. No. 134509, April 12, 2005, 455 SCRA 377, 389; Golangco v. Fung, G.R. No.
 147640, October 16, 2006, 504 SCRA 321; Cabrera v. Lapid, G.R. No. 129098, December 6, 2006, 510
SCRA 55.
[28]
 Supra note 27, p. 749.
[29]
 G.R. No. 144573, September 24, 2002, 389 SCRA 570,575.
[30]
 G.R. No. 155320, February 5, 2004, 422 SCRA 282, 285.
[31]
 De Jesus v. Office of the Ombudsman, G.R. No. 140240, October 18, 2007, 536 SCRA 547, 553, citing Republic
v. Canastillo, G.R. No. 172729, June 8, 2007, 524 SCRA 546, 553.
[32]
 Barata v. Abalos, Jr., G.R. No. 142888, June 6, 2001, 358 SCRA 575, 581, and Paragraph 2, Section 18,
Republic Act No. 6770.
[33]
 Republic v. Canastillo, supra, note 31, p. 553; Chan v. Marcelo, G.R. No. 159298, July 6, 2007, 526 SCRA 627,
635.
[34]
 See: Section 1, Rule 65, Rules of Court.
[35]
 Bayantel, Inc. v. Republic of the Philippines, G.R. No. 161140, January 31, 2007, 513 SCRA 562, 569.
[36]
 Laxina v. Ombudsman, G.R. No. 153155, September 30, 2005, 471 SCRA 542, 555.
[37]
 Rollo, pp. 68-69.
[38]
 Id., pp. 70-71.
[39]
 Id., p. 75.
[40]
 Id., pp. 76-80.

N BANC

[G.R. NO. 182267 : August 28, 2009]

PAGAYANAN R. HADJI-SIRAD, Petitioner, v. CIVIL SERVICE COMMISSION, Respondent.

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure,
petitioner Pagayanan Hadji-Sirad is seeking the review and reversal of the Resolutions dated 18 January
20081 and 12 March 20082 of the Court of Appeals, dismissing her Petition for Certiorari in CA-G.R. SP No.
02103-MIN, for being the wrong mode of appeal, for her failure to state material dates as regards her
Motion for Reconsideration before the Civil Service Commission (CSC), and for her failure to append a copy
of said Motion for Reconsideration to her dismissed Petition. Petitioner intended to challenge in her Petition
before the Court of Appeals (1) CSC Resolution No. 0708753 dated 7 May 2007, affirming the Decision dated
27 February 2006 of CSC Regional Office (CSCRO) No. XII, finding petitioner guilty of Dishonesty, Grave
Misconduct, and Conduct Prejudicial to the Best Interest of the Service, and dismissing petitioner from
service; and (2) CSC Resolution No. 0721964 dated 26 November 2007, denying petitioner's Motion for
Reconsideration.

The factual and procedural antecedents of the instant Petition are as follows:

On 4 February 2002, petitioner, an employee of the Commission on Audit (COA) in the Autonomous Region
for Muslim Mindanao (ARMM), was formally charged by CSCRO No. XII with Dishonesty, Grave Misconduct,
and Conduct Prejudicial to the Best Interest of the Service. Pertinent portions of the Formal Charge against
petitioner read:
The result of the investigation established the following facts:

1. On November 10, 1994, Pagayanan R. Hadji-Sirad, formerly Pagayanan M. Romero accomplished a

Personal Data Sheet;

2. The said Personal Data Sheet was submitted to the Civil Service Field Office-COA to support her
appointment as State Auditor I;

3. In Item number 18 of the Personal data Sheet, particularly on civil service eligibility, Hadji-Sirad indicated
that she possesses Career Service Professional Eligibility having passed the examination on October 17,
1993 at Iligan City with a rating of 88.31%;

4. Accordingly, the examination records of Hadji-Sirad were retrieved. The same were compared with the
entries in her Personal Data Sheet. It is revealed that:

4.1 Applicant and examinee Hadji-Sirad took the same as shown by the picture attached to the application
form and picture seat plan for Room 003 Administration Building, Iligan City National High School, Iligan
City. In fact, it is apparent that these pictures were taken from a single shot;

4.2 Comparison, however of these pictures with that found in the Personal Data Sheet of Hadji-Sirad dated
November 10, 1994 reveals that appointee bears no semblance with applicant or examinee Hadji Sirad;
Examinee Hadji Sirad looks older than the true Hadji Sirad despite the fact that the examination was
conducted in 1993 while the Personal Data Sheet was accomplished in 1994;

4.3 There exist differences in the strokes used in affixing the signature in the picture seat plan compared
with that in the personal data sheet. The examinee Hadji-Sirad used slanting strokes in affixing her
signature while the appointee Hadji-Sirad utilized vertical strokes.

The foregoing facts and circumstances indicate that Pagayanan Romero Hadji-Sirad allowed another person
to take the October 17, 1993 Career Service Professional Examination. This act undermines the integrity of
civil service examinations and warrants the institution for administrative case against her for Dishonesty,
Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service.

WHEREFORE, Pagayanan Romero Hadji-Sirad is hereby formally charged with Dishonesty, Grave Misconduct
and Conduct Prejudicial to the Best Interest of the Service.5

A formal investigation was thereafter conducted.

The first hearing of the administrative case against petitioner was repeatedly postponed, upon petitioner's
request, from the original date of 29 August 2002 to 16 October 2002, 20 December 2002, 14 January
2003, 20 March 2003, and 16 April 2003. During these instances, petitioner had been constantly warned
that having utilized the allowable number of postponements, failure to attend the succeeding investigations
could be taken as waiver of her right to present evidence.

On 2 April 2003, petitioner filed a Motion for Change of Venue of hearing of the case from CSCRO No. XII in
Cotabato City, to CSCRO No. X in Cagayan de Oro City, averring that her lawyer was reluctant to go to
Cotabato City due to its distance from Iligan City, as well as the unfavorable peace and order condition in
Cotabato City; and also arguing that the situs of petitioner's alleged offense was in Iligan City, and not in
Cotabato City. However, the CSC, in its Resolution No. 031139 dated 11 November 2003, denied petitioner's
Motion.6

The hearing of the case was again set on 19 February 2004. On said date, however, petitioner requested
another postponement because she was attending an Echo-Seminar on Planning in Cotabato City. Petitioner
sought further postponement of the hearings scheduled for 17 March and 31 March 2004.

Finally, petitioner and her counsel attended the hearings on 17 May 2004 and 23 September 2004, and the
prosecution was able to present its evidence.
The prosecution presented evidence establishing that petitioner previously took, and failed, the Career
Service (CS) Professional Examination held on 29 November 1992 at Room 26, Iligan Capitol College, Iligan
City. She allegedly again took the CS Professional Examination on 17 October 1993. The prosecution,
however, claimed that, while petitioner's pictures and signatures in her Application Form (AF) and Picture
Seat Plan (PSP) for the CS Professional Examination on 29 November 1992 which she failed appeared similar
to those in her PDS dated 10 November 1994, the pictures and signatures appearing in her AF and PSP for
the CS Professional Examination on 17 October 1993 were different.

The prosecution then rested after its formal offer of evidence. It was petitioner's turn to present evidence in
her defense.

Petitioner herself took the witness stand on 25 November 2004. Petitioner admitted that she previously took
the CS Professional Examination on 29 November 1992, but she failed the same. She again applied for and
actually took the CS Professional Examination on 17 October 1993, which she passed. Petitioner insisted
that the pictures and signatures appearing in the AF and PSP for the CS Professional Examination on 17
October 1993 were all hers. She confirmed knowing Adelaida L. Casanguan (Casanguan), one of her
witnesses, who also took the CS Professional Examination on 17 October 1993 at Room 003, Administration
Building of the Iligan City National High School.

Casanguan, recounted that she took the CS Professional Examination on 17 October 1993 at Room 003,
Administration Building of the Iligan City National High School, but she did not pass the same. She claimed
that she knew petitioner, having seen the latter take the CS Professional Examination also on 17 October
1993 in the same room.

Petitioner's third and last witness was Dick U. Yasa (Yasa). Yasa, then Personnel Specialist II of CSCRO No.
XII, testified that he personally got to know petitioner, an employee of COA-ARMM, and formerly Ms.
Pagayanan Romero, since their offices previously shared the same building. Yasa was among those who
assisted in the conduct of the CS Professional Examination held on 17 October 1993 in Iligan City. At around
7:00 to 7:30 in the morning of said date, Yasa alleged seeing petitioner in Room 003 of Iligan City National
High School for the CS Professional Examination.

CSCRO No. XII rendered its Decision on 27 February 2006, the dispositive portion of which reads:

WHEREFORE, respondent Pagayanan Romero-Hadji Sirad is hereby found GUILTY of Dishonesty, Grave
Misconduct and Conduct Prejudicial to the Best Interest of the Service. She is hereby meted the penalty of
DISMISSAL from the service. The accessory penalties of forfeiture of retirement benefits, cancellation of
eligibility, prohibition from entering the government service and disqualification from taking future
government examinations are likewise imposed.

Let copy of this Decision be furnished respondent and her counsel in their addresses on record; the
Commission on Audit - Autonomous Region in Muslim Mindanao (COA-ARMM), Cotabato City; the Office for
Legal Affairs (OLA), Civil Service Commission, Quezon City; the Civil Service Commission - Autonomous
Region in Muslim Mindanao (CSC-ARMM), Cotabato City; the Government Service Insurance System (GSIS)
- Cotabato Branch; and the Examination Services Division and Policies and Systems Evaluation Division, this
Office, for information and appropriate action.7

Petitioner's Motion for Reconsideration was denied by CSCRO No. XII in a Resolution8 dated 30 May 2006.

Aggrieved, petitioner appealed to the CSC.

In Resolution No. 070875 dated 7 May 2007, the CSC agreed in the findings of CSCRO No. XII, the fallo of
which reads:

WHEREFORE, the appeal of Pagayanan R. Hadji-Sirad is hereby DISMISSED. Accordingly, the Decisions of
the Civil Service Commission Regional Office No. XII dated February 27, 2006 finding Hadji-Sirad guilty of
Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service and imposing upon
her the penalty of dismissal from the service and its accessory penalties of cancellation of eligibility,
forfeiture of retirement benefits, disqualification from holding public office and bar from taking any Civil
Service examinations, and dated March 30, 2006 denying her Motion for Reconsideration, respectively, are
hereby AFFIRMED.9

The CSC denied petitioner's Motion for Reconsideration in CSC Resolution No. 072196 dated 26 November
2007. According to said Resolution:

The doctrine of res ipsa loquitur finds application in her case, as the evidence cannot lie. Worst, the [herein
petitioner] did not present any controverting evidence sufficient enough to support her defense that indeed
she was the same person appearing in the PSP and AF for the October 17, 1993 Career Service Professional
Examination held in Iligan City and the one who actually took the said examination. The [petitioner] must
remember that, although the very examination record in question was the October 17, 1993 Career Service
Professional Examination, reference was made in the November 22, 1992 Career Service Professional
Examination records when it was confirmed that she took the same examination. In the November 22, 1992
Career Service Professional Examination records, the pictures attached to the PSP and AF and the signatures
affixed thereon are very much similar to the picture and signature in her PDS. The conclusion drawn from all
these is that Hadji-Sirad took the November 22, 1992 Career Service Examination but she did not take the
October 17, 1993 examinations. These are not mere inferences but are simple truth strongly supported by
the evidence on record.10

The CSC, in the end, disposed:

WHEREFORE, the motion for reconsideration of Pagayanan R. Hadji-Sirad [petitioner] is hereby DENIED.
Accordingly, Civil Service Commission Resolution No. 070875 dated May 7, 2007 finding her guilty of
Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service, STANDS.11

Unwavering, petitioner filed before the Court of Appeals a Petition for Certiorari12 under Rule 65 of the 1997
Revised Rules of Civil Procedure on the ground that the CSC Resolutions dated 7 May 2007 and 26
November 2007 were issued with grave abuse of discretion amounting to lack or in excess of jurisdiction.
The Petition was docketed as CA-G.R. SP No. 02103-MIN.

On 18 January 2008, the Court of Appeals issued a Resolution dismissing the Petition in CA-G.R. SP No.
02103-MIN for being a wrong mode of appeal. Petitioner should have filed a Petition for Review under Rule
43, not a petition for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure. The appellate
court likewise dismissed the Petition for petitioner's failure to indicate therein the material date of filing of
her Motion for Reconsideration before the CSC, and to append thereto the said Motion for Reconsideration,
in violation of the second and third paragraphs of Section 3, Rule 46 of the 1997 Revised Rules of Civil
Procedure.

Petitioner's Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 12 March
2008.

Petitioner comes before this Court via the present Petition for Review on Certiorari, posing the following
issues for resolution:

WHETHER OR NOT RULE 65 IS THE PROPER REMEDY

WHETHER OR NOT THE COURT OF APPEALS IS CORRECT IN DISMISSING THE PETITION FOR CERTIORARI
FILED BY PETITIONER BASED ON MERE TECHNICALITIES

WHETHER OR NOT THE CIVIL SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION BY
IGNORING THE IMPORTANT PIECES OF EVIDENCE DULY PRESENTED BY THE PETITIONER.

The Court of Appeals did not err in dismissing the Petition for Certiorari in CA-G.R. SP No. 02103-MIN for
being the wrong mode of appeal and for non-compliance with several other procedural requirements.

Section 50, Rule III of the Uniform Rules on Administrative Cases in the CSC13 plainly states that a party
may elevate a decision of the Commission before the Court of Appeals by way of a Petition for Review under
Rule 43 of the 1997 Revised Rules of Court.14
Sections 1 and 5, Rule 43 of the 1997 Revised Rules of Civil Procedure, as amended, provide that final
orders or resolutions of the CSC are appealable to the Court of Appeals through a Petition for Review, to wit:

SECTION 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax
Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial
agency in the exercise of quasi judicial functions. Among these agencies are the Civil Service Commission,
Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks
and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of Agrarian Reform under Republic Act. No. 6657,
Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction
Industry Arbitration Commission, and voluntary arbitrators authorized by law.

SEC. 5. How appeal taken. 'Appeal shall be taken by filing a verified Petition for Review in seven (7) legible
copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the
court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated
as such by the petitioner.

Hence, in accordance with the foregoing rules, if petitioner indeed received a copy of CSC Resolution No.
072196 dated 26 November 2007, denying her Motion for Reconsideration, on 5 December 2007, she had
15 days thereafter, or until 20 December 2007, to file a Petition for Review with the Court of Appeals.
However, petitioner filed instead a Petition for Certiorari on 27 December 2007, already 22 days after
receipt of a copy of CSC Resolution No. 072196 dated 26 November 2007.

As we have held in numerous cases, a special civil action for certiorari is not a substitute for a lost or lapsed
remedy of appeal.15 We have often enough reminded members of the bench and bar that a special civil
action for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure lies only when there is no
appeal or plain, speedy and adequate remedy in the ordinary course of law.16 Certiorari is not allowed when
a party to a case fails to appeal a judgment or final order despite the availability of that remedy. The
remedies of appeal and certiorari are mutually exclusive and not alternative or successive.17In this case,
petitioner utterly failed to provide any justification for her resort to a special civil action for certiorari, when
the remedy of appeal by Petition for Review was clearly available.

In addition to being the wrong mode of appeal, the Court of Appeals also dismissed the Petition
for Certiorari in CA-G.R. SP No. 02103-MIN for petitioner's failure to comply with the requirements for
petitions under Rule 65 of the 1997 Revised Rules of Civil Procedure, particularly, the second and third
paragraphs of Section 3, Rule 46, of the same rules, which read:

SEC. 3. Contents and filing of petition; effect of non-compliance with requirements.'

x    x    x

In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of
the judgment or final order or resolution subject thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of the denial thereof was received.

It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent
with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied
by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling
subject thereof, such material portions of the record as referred to therein, and other documents relevant or
pertinent thereto. The certification shall be accomplished by the proper clerk of court or by his duly
authorized representative, or by the proper officer of the court, tribunal, agency or office involved or by his
duly authorized representative. The other requisite number of copies of the petition shall be accompanied by
clearly legible plain copies of all documents attached to the original.

The consequence for non-compliance with any of such requirements is sheerly spelled out in the sixth
paragraph of Rule 3, Section 46 of the 1997 Revised Rules of Civil Procedure, to be as follows:
The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for
the dismissal of the petition. (Emphasis supplied.)

Petitioner failed to indicate in her Petition for Certiorari in CA-G.R. SP No. 02103-MIN the material date
when she filed her Motion for Reconsideration of CSC Resolution No. 070875 dated 7 May 2007, and to
append to the same Petition a certified true copy or duplicate original of the said Motion for Reconsideration.
Accordingly, the Court of Appeals dismissed the Petition.

Rules of procedure are tools designed to promote efficiency and orderliness as well as to facilitate
attainment of justice, such that strict adherence thereto is required.18 However, technical rules of procedure
are not designed to frustrate the ends of justice. The Court is fully aware that procedural rules are not to be
belittled or simply disregarded, for these prescribed procedures insure an orderly and speedy administration
of justice. However, it is equally true that litigation is not merely a game of technicalities. Law and
jurisprudence grant to courts the prerogative to relax compliance with procedural rules of even the most
mandatory character, mindful of the duty to reconcile both the need to put an end to litigation speedily and
the parties' right to an opportunity to be heard.19

This is not to say that adherence to the Rules could be dispensed with. However, exigencies and situations
might occasionally demand flexibility in their application.20 In not a few instances, the Court relaxed the rigid
application of the rules of procedure to afford the parties the opportunity to fully ventilate their cases on the
merit. This is in line with the time-honored principle that cases should be decided only after giving all parties
the chance to argue their causes and defenses. Technicality and procedural imperfection should, thus, not
serve as basis of decisions. In that way, the ends of justice would be better served. For, indeed, the general
objective of procedure is to facilitate the application of justice to the rival claims of contending parties,
bearing always in mind that procedure is not to hinder but to promote the administration of justice.21

In Sanchez v. Court of Appeals,22 the Court restated the reasons that may provide justification for a court to
suspend a strict adherence to procedural rules, such as: (a) matters of life, liberty, honor or property; (b)
the existence of special or compelling circumstances; (c) the merits of the case; (d) a cause not entirely
attributable to the fault or negligence of the party favored by the suspension of the rules; (e) a lack of any
showing that the review sought is merely frivolous and dilatory; and (f) the other party will not be unjustly
prejudiced thereby.23

Pointedly, even if we were to overlook petitioner's procedural lapses and review her case on the merits, we
find no reason to reverse her dismissal from service by the CSC.

Firstly, petitioner was dismissed from service only after being accorded due process.

In administrative proceedings, such as in the case at bar, procedural due process simply means the
opportunity to explain one's side or the opportunity to seek a reconsideration of the action or ruling
complained of.24 "To be heard" does not mean only verbal arguments in court; one may be heard also thru
pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is
no denial of procedural due process.25

In administrative proceedings, procedural due process has been recognized to include the following: (1) the
right to actual or constructive notice of the institution of proceedings, which may affect a respondent's legal
rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses
and evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdiction
and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well
as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the parties affected.26

Petitioner cannot claim denial of due process when records reveal that (1) petitioner was given sufficient
notice of the Formal Charge against her and the setting of the hearings of her administrative case before
CSCRO No. XII; (2) petitioner was formally charged after an initial investigation was conducted; (3) her
several requests for postponement of the hearings were granted; (4) the prosecution only presented
evidence during the hearings on 17 May 2004 and 23 September 2004, when petitioner and her counsel
were present; (5) petitioner herself and her two witnesses, Casanguan and Yasa, got the opportunity to
testify on 25 November 2004; (6) only after the parties had submitted their arguments and evidence did
CSCRO No. XII render its Decision on 27 February 2006; (7) petitioner was able to file a Motion for
Reconsideration with CSCRO No. XII, but it was denied; (8) petitioner sought recourse with the CSC by filing
an appeal, as well as a Motion for Reconsideration of the unfavorable judgment subsequently rendered by
the CSC; and (8) when her Petition for Certiorari was dismissed by the Court of Appeals, petitioner was able
to file the instant Petition before us. All these establish that petitioner was able to avail herself of all
procedural remedies available to her.

Secondly, the Decision dated 27 February 2006 of CSCRO No. XII, affirmed by the CSC, which dismissed
petitioner from service for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the
Service, is supported by competent and credible evidence.

The 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.27

Well-entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond
reasonable doubt, is sufficient basis for the imposition of any disciplinary action upon an employee. The
standard of substantial evidence is satisfied where the employer has reasonable ground to believe that the
employee is responsible for the misconduct, and his participation therein renders him unworthy of trust and
confidence demanded by his position.28

There is such substantial evidence herein to prove petitioner guilty of the administrative offenses for which
she was charged.

Even only a cursory examination of petitioner's pictures and signatures in her PDS dated 10 November
1994, and in the AF and PSP for the CS Professional Examination of 29 November 1992, on one hand; and
petitioner's purported pictures and signatures in the AF and PSP for the CSC Professional Examination of 17
October 1993, on the other, reveals their marked differences from one another. It can be observed by the
naked eye that the pictures and signatures bear little resemblance/similitude, or none at all. The pictures
could not have been those of the same individual, nor could the signatures have been made by the same
person.

This conclusion is strengthened by the CSCRO when it expostulates that:

It is a different matter, however, upon evaluation of the examination records of respondent for the October
17, 1993 CS Professional Exam vis - à-vis her Personal Data Sheet as well as her examination records for
the November 29, 1992 CS Professional Exam. It reveals that respondent Hadji Sirad is not the same person
who took the October 17, 1993 CS exam. The facial features as well as the signatures of examinee and
appointee Romero are glaringly different. Records clearly show that the person appearing in the picture for
the November 1992 exam is the same person whose picture appears in the PDS - that is appointee Hadji
Sirad. Examinee Romero (Hadji-Sirad) in the October 1993 exam, on the other hand, does not look like
appointee Romero (Hadji-Sirad) as shown in the two documents. Most notable is the mole on the left side of
the cheek of Romero which examinee does not have. This can be clearly observed in the scanned photos
below: x x x.29

And reechoed by the CSC, thus:

The Commission also made a careful examination and comparison of the picture attached to the PSP and AF
for the Career Civil Service Professional Examination held on October 17, 1993 with those attached to the
PSP and AF for the previous Career Service Professional Examination she took on November 29, 1992 on file
with the Commission, and those attached to Hadji-Sirad's PDS; it is convinced that another person took the
Career Service Professional Examination held on October 17, 1993.

While it is true that the pictures of Hadji-Sirad attached to the PSP and AF for the Career Service
Professional Examination held on November 29, 1992 and to her PDS were not the same, the resemblance,
however, in the facial features in said pictures are notable and unmistakably belong to one and the same
person. Comparing these pictures to the pictures attached to the PSP and AF for the October 17, 1993
Career Service Professional Examination, the differences are so striking that one would conclude easily that
the persons therein are two different individuals. As correctly observed by the CSCRO No. XII, the person
appearing in the picture attached to the PSP and AF in October 17, 1993 Career Service Professional
Examination looked quite older than the more recent picture of Hadji-Sirad attached to her PDS dated
November 10, 1994.

The Commission also noted a remarkable difference in the signatures of Hadji-Sirad appearing in the PSP
and AF for the October 17, 1993 Career Service Professional Examination and those affixed in the PSP for
the November 29, 1992 Career Service Professional Examination previously taken by her and in her PDS.
The strokes used in the signature affixed in the PSP and AF of the October 17, 1993 Career Service
Professional Examination were somewhat forcedly pressed and slanting, and the letters thereof were more
prominent and defined while those affixed in other documents on file with the Commission were finer and
were in an upright stroke and the letters were less defined. Even to the naked eye, the slants and strokes
are very dissimilar and are clearly made by two (2) different persons.

Based on the foregoing circumstances and on the substantial evidence on record, the Commission is
convinced that Hadji-Sirad has allowed another person to apply and take the Career Service Professional
Examination held on October 17, 1993 in her behalf to ensure her passing the said examination.30

As a general rule, the findings of fact of the CSC and the Court of Appeals are accorded great weight. In a
plethora of cases, we have held that lower courts are in a better position to determine the truth of the
matter in litigation, since the pieces of evidence are presented before them, and they are able to look into
the credibility and the demeanor of the witnesses on the witness stand. Furthermore, quasi-judicial bodies
like the CSC are better-equipped in handling cases involving the employment status of employees as those
in the Civil Service since it is within the field of their expertise. Factual findings of administrative agencies
are generally held to be binding and final so long as they are supported by substantial evidence in the
record of the case. It is not the function of the Supreme Court to analyze or weigh all over again the
evidence and credibility of witnesses presented before the lower court, tribunal or office. The Supreme Court
is not a trier of facts. Its jurisdiction is limited to reviewing and revising errors of law imputed to the lower
court, its findings of fact being conclusive and not reviewable by this Court.31

Petitioner attributes the difference in the way she looked in the pictures to the passage of time or difference
in the "positioning" when the pictures were taken; and the variance in her signatures to her state of mind at
the time she was actually signing and the kind of writing implement and paper she was using.

We are unconvinced. Petitioner's explanations would have accounted for small or few differences in the
pictures and signatures; but not when they are on the whole strikingly dissimilar. Moreover, it would have
been easy for petitioner to submit evidence such as pictures to show the gradual change in her appearance
through the years, or samples of her signatures made when she was of a different state of mind or using
other writing implements and papers; yet, petitioner failed to do so. ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

We cannot even consider the possibility that the CSC officials who supervised the examinations committed a
mistake in matching the pictures and signatures vis - à-vis the examinees, as the said CSC officials enjoy
the presumption of regularity in the performance of their official duty. Besides, such a mix-up is highly
unlikely due to the strict procedures followed during civil service examinations, described in detail in Cruz v.
Civil Service Commission,32 to wit:

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 only logical scenario is that another person, who matched the picture in the PSP, actually signed the AF
and took the CS Professional Examination on 17 October 1993, in petitioner's name.

True, petitioner was able to present testimonial evidence supporting her allegation that she was at Room
003 of the Administration Building of Iligan City National High School on 17 October 1993, the day of the CS
Professional Examination. But, despite said testimonies, both CSCRO No. XII and the CSC still gave the
prosecution's evidence more credit and weight. On this point, we again pertinently quote the following
observations in the decision of the Regional Director dated 27 February 2006 and in the Resolution denying
the petitioner's motion for reconsideration issued on 30 May 2006:

Further, testimonies of witnesses Casanguan and Yasa do not stand conclusive of the fact that it was indeed
respondent who took the said examination. Yasa only testified that he saw Romero's name at Room No. 003
of Iligan City National High School and that allegedly he saw respondent at around 7-7:30 a.m. in the
examination center but he did not stay any longer at the said venue, hence he was not there anymore when
the examination actually began and ended. Thus, Yasa could not claim that he actually saw respondent take
the examination.

x    x    x

The testimony of respondent-movant and that of witness Casanguan are self-serving. The testimony of
Yasa, on the other hand, negated his sworn statement that he actually saw Hadji Sirad take the October
1993 examination. On the witness stand, it was made clear that he only saw the name of Hadji Sirad in the
list of examinees posted outside Room 003. Further, that the only time he saw Hadji Sirad was prior to the
start of the examination. Clearly, he did not see Hadji Sirad actually take the exam nor hand in her
examination papers after she finished the examination. Finally, it is stressed that the fact that Yasa is a
long-time employee of the Commission does not render his statements relative to the conduct of the 1993
CS Professional examination in Iligan City as gospel truth.

Given the foregoing, the Court finds that petitioner is, indeed, guilty of Dishonesty, Grave Misconduct, and
Conduct Prejudicial to the Best Interest of the Service. Dishonesty alone, being in the nature of a grave
offense, carries the extreme penalty of dismissal from the service with forfeiture of retirement benefits,
except accrued leave credits, and perpetual disqualification for reemployment in the government service.33

WHEREFORE, the instant Petition is hereby DENIED. The Resolutions dated 18 January 2008 and 12 March
2008 of the Court of Appeals in CA-G.R. SP No. 02103-MIN are AFFIRMED. Costs against the petitioner.

SO ORDERED.

Endnotes:

1
 Penned by Associate Justice Elihu A. Ybanez with Associate Justices Romulo V. Borja and Mario V. Lopez,
concurring; rollo, pp. 55-57.

2
 Id. at 60-61.

3
 Penned by Chairman Karina Constantino-David and concurred in by Commissioner Mary Ann Z. Fernandez-
Mendoza. (Id. at 231-238.)

4
 Id. at 239-246.

5
 Rollo, pp. 234-235.

6
 Id. at 247.

7
 Id. at 405.

8
 Id. at 415-417.

9
 Id. at 238.
10
 Id. at 245.

11
 Id. at 246.

12
 Id. at 107-154.

13
 Section 50. Petition for Review with the Court of Appeals. - A party may elevate a decision of the
Commission before the Court of Appeals by way of a Petition for Review under Rule 43 of the 1997 Revised
Rules of Court.

14
 Commissioner on Higher Education v. Mercado, G.R. No. 157877, 10 March 2006, 484 SCRA 424, 432.

15
 Tuazon, Jr. v. Godoy, 442 Phil. 130, 136 (2002).

16
 Dwikarna v. Domingo, G.R. No. 153454, 7 July 2004, 433 SCRA 748, 754; Marawi Marantao General
Hospital, Inc. v. Court of Appeals, 402 Phil. 356, 370 (2001); Heirs of Pedro Atega v. Garilao, 409 Phil. 214,
218 (2001); Zarate, Jr. v. Olegario, 331 Phil. 278, 287 (1996); Solis v. National Labor Relations
Commission, 331 Phil. 928, 932 (1996).

17
 Heirs of Lourdes Padilla v. Court of Appeals, 469 Phil. 196, 204 (2004).

18
 Moncielcoji Corporation v. National Labor Relations Commission, 409 Phil. 486, 491-492 (2001).

19
 Barranco v. Commission on the Settlement of Land Problems, G.R. No. 168990, 16 June 2006, 491 SCRA
222, 232, citing Reyes v. Torres, 429 Phil. 95, 101 (2002).

20
 Polanco v. Cruz, G.R. No. 182426, 13 February 2009.

21
 Asian Spirit Airlines (Airline Employees Cooperative) v. Bautista, 491 Phil. 476, 484 (2005).

22
 452 Phil. 665, 674 (2003); Macasasa v. Sicad, G.R. No. 146547, 20 June 2006, 491 SCRA 368, 383, citing
Barnes v. Padilla, 482 Phil. 903, 915 (2004).

23
 Barranco v. Commission on the Settlement of Land Problems, supra note 19.

24
 Padilla v. Hon. Sto. Tomas, 312 Phil. 1095, 1103 (1995).

25
 Salonga v. Court of Appeals, 336 Phil. 514, 528 (1997).

26
 Fabella v. Court of Appeals, 346 Phil. 940, 952-953 (1997).

27
 Atty. San Juan, Jr. v. Sangalang, 404 Phil. 11, 21 (2001).

28
 Reyno v. Manila Electric Company, 478 Phil. 830, 840 (2004).

29
 Rollo, p. 402.

30
 Id. at 236.

31
 Pabu-aya v. Court of Appeals, 408 Phil. 782, 788 (2001).

32
 422 Phil. 236, 245 (2001).

33
 De la Pena v. Sia, A.M. No. P-06-2167, 27 June 2006, 493 SCRA 8, 20.