SECOND DIVISION
[ G. R. NO. 156047, April 12, 2005 ]ENGR. PEDRO C. RUBIO v. EMMANUEL M. PARAS +
ENGR. PEDRO C. RUBIO, JR., PETITIONER, VS. HON. EMMANUEL M. PARAS, ADMINISTRATOR, NATIONAL IRRIGATION ADMINISTRATION (NIA), RESPONDENT.
D E C I S I O N
ENGR. PEDRO C. RUBIO v. EMMANUEL M. PARAS +
ENGR. PEDRO C. RUBIO, JR., PETITIONER, VS. HON. EMMANUEL M. PARAS, ADMINISTRATOR, NATIONAL IRRIGATION ADMINISTRATION (NIA), RESPONDENT.
D E C I S I O N
CALLEJO, SR., J.:
Before us is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the Resolution[1] of the Court of Appeals (CA) in CA-G.R. SP No. 70868, and its Resolution[2] denying the motion for
reconsideration thereof.
The Antecedents
On July 10, 2001, Rolando Ibañez, the Regional President, Regions 7 and 8 of the National Irrigation Administration (NIA) Employees Association of the Philippines, filed a complaint[3] against the petitioner, Engr. Pedro Rubio, Jr., then the Provincial Irrigation Officer of the Northern Leyte Irrigation Administration, Tacloban City, with respondent NIA Administrator. Appended thereto, as Annexes "A" to "L" thereof, were the documents in support of the complaint.
Gabriel Q. Enriquez, the Chairman of the Committee on Discipline and the Assistant Administrator for Administrative Services, issued a Memorandum[4] to the petitioner dated September 3, 2001, requiring him to submit within three (3) days from notice thereof, his counter-affidavit and/or comment on the complaint. The petitioner, through counsel, submitted his Comment[5] dated October 13, 2001. Appended thereto was the Audit Report of the Commission on Audit (COA) Regional Office No. 8.
On March 15, 2002, the respondent found a prima facie case against the petitioner and signed a Formal Charge, docketed as NIA Administrative Case No. 02-01, and alleged that the petitioner committed the following administrative offenses:
Instead of filing his answer to the charges, the petitioner filed, on April 2, 2002, a petition for certiorari[8] before the Regional Trial Court (RTC) of Tacloban City, for the nullification of the formal charge and his preventive suspension. He alleged that the charges under 1(a) and (e) and 2, except Marilou Jaya's complaint for oppression, were not included in the consolidated list of the charges made by Ibañez in the Memorandum dated September 3, 2001; their inclusion in the formal charge thereby deprived him of his right to due process. The petitioner further alleged that the Civil Service Commission (CSC) had dismissed the cases against him, and the appeal thereon was likewise dismissed on July 7, 2000. He alleged, inter alia, that the charges in 1(b), (c) and (d) were the subject of a special audit of the COA; hence, beyond the jurisdiction of the NIA Administrator; Jaya's charges of oppression were the subject of Administrative Disciplinary Case No. 01-026 pending before the CSC Regional Office No. 8. The petitioner concluded that since the formal charge was void, there was no legal basis for his preventive suspension. The petitioner also alleged that there was no appeal or other plain, speedy and adequate remedy in the ordinary course of law available to him.
On April 15, 2002, the trial court issued a Resolution[9] dismissing the petition. While the court ruled that the petitioner was deprived of his right to due process because some of the charges contained in the formal charge were not included in the memorandum addressed to him, the proper remedy was to file a motion for the reconsideration of the formal charge and the order of preventive suspension in the Office of the Administrator, or to appeal the same to the CSC.
The petitioner filed a motion for the reconsideration of the said order on the following grounds:
GROUNDS FOR THE PETITION
In his comment on the said petition, the respondent averred that the petitioner was not proscribed from filing a motion for the reconsideration of the formal charge against him and his preventive suspension. He also claimed that the petition had become moot and academic, and appended a copy of an undated Order issued by the Committee on Discipline where the following were stated: (a) the period for the preventive suspension of the petitioner had already lapsed, and the petitioner had been reinstated; (b) the Committee received a motion to admit an amended complaint filed by Ibañez "to set out the true facts some of which were vaguely alleged or inadvertently omitted in the original complaint" and wherein it was alleged that the charges of oppression and violation of existing CSC Rules on time cards had been dismissed by the CSC; (c) the Committee admitted the amended complaint and ordered the charges for oppression and violation of CSC rules on time cards dismissed and recalled the remaining charges; (d) the petitioner was ordered to submit his answer on the comment to the amended complaint within five days from receipt thereof;[14] and (e) the petitioner filed a motion to clarify the Order, alleging that the Committee on Discipline erred in admitting the amended complaint after recalling the charges that had not been dismissed by the CSC.
The respondent prayed that the appellate court dismiss the petition under the second paragraph of Section 8, Rule 65 of the Rules of Court.
On November 13, 2002, the CA issued a Resolution[15] denying the petitioner's motion for reconsideration.
The petitioner then filed the present petition, contending that the CA acted contrary to case law and, in effect, sanctioned the refusal of the RTC Judge to voluntarily inhibit himself.[16]
The petitioner avers that the trial court committed a grave abuse of its discretion when it dismissed his petition for certiorari despite its findings confirming the allegations in his petition.[17] The petitioner maintains that with its findings, the trial court should have given due course and granted his petition, considering that there was no appeal, or other plain, adequate and speedy remedy in the ordinary course of law. He argues that he was proscribed by Section 16 of the Uniform Rules on Administrative Cases in the Civil Service from filing a motion for reconsideration of the formal charge against him. He asserts that the CA erred in denying his petition for certiorari on the ground that his remedy from the assailed resolution of the trial court was an appeal by writ of error. He insists that the resolution of the trial court dismissing his petition for certiorari for being premature was without prejudice; hence, non-appealable under Section 1(h), Rule 41 of the Rules of Court. The petitioner also asserts that his petitions in the CA and in this Court had not become moot and academic because the amended complaint filed against him with the Committee on Discipline was meant to harass him and to prevent the CA, and this Court, from resolving his petition on the merits. He faults the Presiding Judge of the RTC for not voluntarily inhibiting himself since he was a relative within the sixth degree of Eugene Sylvester A. Jaya, the husband of Marilou J. Jaya, one of the complainants against him on the charge of oppression.
In its comment on the petition, the respondent, through the Office of the Solicitor General, averred that:
We agree with the contention of the petitioner that the resolution of the trial court dismissing his petition for certiorari on the ground of prematurity was without prejudice.[21] Under Section 1(h), Rule 41 of the Rules of Court, an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party in such case is to file a special civil action for certiorari under Rule 65 of the Rules of Court:
We do not agree with the contention of the respondent that the petition has become moot and academic following the Committee on Discipline's admission of the amended complaint of Ibañez, the alleged dismissal by the CSC of the charges against the petitioner for oppression and violation of existing civil service rules on time cards, and the withdrawal of the other charges. There is an imperative need for the Court to resolve the issues as to whether the petitioner was deprived of his right to due process and whether there was a legal basis for his suspension. Finally, as we have previously ruled, courts will resolve a question, otherwise moot and academic, if it is capable of repetition yet evading review.[22]
We agree with the respondent that the petitioner was not proscribed from filing with the respondent a motion for the reconsideration of the formal charge against him. The petitioner cannot find solace in Section 16 of the Uniform Rules on Administrative Cases in the Civil Service which reads:
Likewise, under Section 21 of the said Rule, the respondent therein may file a motion for the reconsideration of an order of preventive suspension with the disciplining authority and to appeal from an adverse ruling to the CSC.
The general rule is that the aggrieved party is mandated to exhaust all administrative remedies available before resorting to judicial recourse. The tribunal, either judicial or quasi-judicial must be given a chance to correct the imputed errors on its act or order.[24] The rule is an element of the petitioner's right to action, and if he fails or refuses to avail himself of the same, the judiciary shall decline to interfere.[25]
However, a motion for reconsideration of the assailed formal charge may not be adequate and speedy; hence, may be dispensed with by the aggrieved party who may file the appropriate judicial recourse under any of the following exceptional circumstances:
We agree with the petitioner's contention that the RTC acted capriciously and arbitrarily, amounting to excess or lack of jurisdiction, when it dismissed the petition for a writ of certiorari on its ruling that a motion for a reconsideration of the formal charge was a condition sine qua non to the petitioner's recourse to judicial relief.
In the present case, the issues before the trial court, based on the record before it, were legal. The trial court sustained the contention of the petitioner, and declared in its April 15, 2002 Resolution that the charges in paragraphs (a) and (e) of the formal charge were not included in the complaint of Ibañez against the petitioner; hence, the latter was deprived of his right to be informed of the charges against him and to respond thereto. The trial court also declared that the charges of oppression of the employees mentioned in charge no. 2 (except that of Jaya) had already been dismissed and yet were still included in the formal charge filed by the respondent with the Committee on Discipline, while the other charges were the subject of an inquiry and investigation by the COA special audit team. Moreover, Jaya's oppression charge against the petitioner was still pending in the CSC. In fact, the CSC had dismissed the complaint of Jaya and her appeal therefrom. The trial court, in effect, found the formal charges against the petitioner to be patently illegal, amounting to lack or excess of jurisdiction:
Instead of dismissing the petition for certiorari filed by the petitioner, the RTC should have given due course and granted the same, and nullified the formal charge and the Order of the respondent suspending the petitioner from office.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Resolutions of the Court of Appeals are SET ASIDE. The Formal Charge against petitioner Engr. Pedro C. Rubio, Jr., dated March 15, 2002, as well as the Order for his preventive suspension, are hereby NULLIFIED. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
[1] Penned by Associate Justice Mariano C. Del Castillo, with Associate Justices Conchita Carpio-Morales (now an Associate Justice of the Supreme Court) and Martin S. Villarama, Jr., concurring.
[2] Penned by Associate Justice Mariano C. Del Castillo, with Associate Justices Romeo A. Brawner and Martin S. Villarama, Jr., concurring.
[3] Rollo, pp. 68-70
[4] Id. at 67.
[5] CA Rollo, pp. 47-50.
[6] Rollo, pp. 89-90.
[7] Id. at 90.
[8] Id. at 59-94.
[9] Id. at 51-54.
[10] Id. at 96.
[11] Id. at 55-58.
[12] CA Rollo, p. 7.
[13] Id. at 104-105.
[14] Id. at 118-120.
[15] Rollo, p. 27.
[16] Id. at 13.
[17] Id. at 53.
[18] Rollo, p. 153.
[19] Id. at 156.
[20] Id. at 158.
[21] Herrera, Remedial Law, Vol. II, p. 537, citing Justice Jose Y. Feria.
[22] Province of Batangas v. Romulo, G.R. No. 152774, 27 May 2004, 429 SCRA 736; Viola v. Alunan III, G.R. No. 115844, 15 August 1997, 277 SCRA 409; Gayo v. Verceles, G.R. No. 150477, 28 February 2005.
[23] Commissioner of Internal Revenue v. Michel J. Lhuillier Pawnshop, Inc., G.R. No. 150947, 15 July 2003, 406 SCRA 178.
[24] Pefianco v. Moral, G.R. No. 132248, 19 January 2000, 322 SCRA 439.
[25] Garcia v. Court of Appeals, G.R. No. 100579, 6 June 2001, 358 SCRA 416.
[26] Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109853, 11 October 2000, 342 SCRA 549. (Emphasis supplied)
[27] Naguiat v. Court of Appeals, G.R. No. 118375, 3 October 2003, 412 SCRA 591.
[28] Rollo, pp. 52-53.
[29] Uy v. Court of Appeals, G.R. No. 109557, 29 November 2000, 346 SCRA 246.
[30] Resolution No. 99-1936 of the CSC provides that:
Section 4. Jurisdiction of the Civil Service Commission. - The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it.
Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees.
[31] Section 7. Jurisdiction of Heads of Agencies. - Heads of Departments, agencies, provinces, cities, municipalities and other instrumentalities shall have original concurrent jurisdiction, with the Commission, over their respective officers and employees.
...
The Antecedents
On July 10, 2001, Rolando Ibañez, the Regional President, Regions 7 and 8 of the National Irrigation Administration (NIA) Employees Association of the Philippines, filed a complaint[3] against the petitioner, Engr. Pedro Rubio, Jr., then the Provincial Irrigation Officer of the Northern Leyte Irrigation Administration, Tacloban City, with respondent NIA Administrator. Appended thereto, as Annexes "A" to "L" thereof, were the documents in support of the complaint.
Gabriel Q. Enriquez, the Chairman of the Committee on Discipline and the Assistant Administrator for Administrative Services, issued a Memorandum[4] to the petitioner dated September 3, 2001, requiring him to submit within three (3) days from notice thereof, his counter-affidavit and/or comment on the complaint. The petitioner, through counsel, submitted his Comment[5] dated October 13, 2001. Appended thereto was the Audit Report of the Commission on Audit (COA) Regional Office No. 8.
On March 15, 2002, the respondent found a prima facie case against the petitioner and signed a Formal Charge, docketed as NIA Administrative Case No. 02-01, and alleged that the petitioner committed the following administrative offenses:
The formal charge also contained an order placing the petitioner under preventive suspension for a period of 90 days effective upon his receipt thereof.[7] The petitioner received his copy of the same on April 1, 2002.
- GRAVE MISCONDUCT committed as follows:
- By purchasing cement at a higher price than that prevailing in the market while implementing the rehabilitation of Patong CIS;
- By directing and/or causing the purchase of extravagant materials for the PIO Building;
- For committing irregular activities as Head of Office during the renovation of the PIO building;
- For incurring unjustified cash advances and/or directing his subordinates to cash advance on his behalf; and,
- For causing the cancellation, without just cause, of the vouchers of GSIS remittance of casual employees in Northern Leyte PIO.
- OPPRESSION for causing the forced resignation and/or retirement of Elmer Cabaluna, Manuel Nagado, Zosimo Lodo, Jr., Eduardo Alcober, Rogelio Ramos, Marilou Jaya, Nolan Portugal and Ruperto Hinay, among others.
- VIOLATION OF EXISTING CSC LAW & RULES OF SERIOUS NATURE for failure to maintain a time card and/or daily time record from 1998-2000.[6]
Instead of filing his answer to the charges, the petitioner filed, on April 2, 2002, a petition for certiorari[8] before the Regional Trial Court (RTC) of Tacloban City, for the nullification of the formal charge and his preventive suspension. He alleged that the charges under 1(a) and (e) and 2, except Marilou Jaya's complaint for oppression, were not included in the consolidated list of the charges made by Ibañez in the Memorandum dated September 3, 2001; their inclusion in the formal charge thereby deprived him of his right to due process. The petitioner further alleged that the Civil Service Commission (CSC) had dismissed the cases against him, and the appeal thereon was likewise dismissed on July 7, 2000. He alleged, inter alia, that the charges in 1(b), (c) and (d) were the subject of a special audit of the COA; hence, beyond the jurisdiction of the NIA Administrator; Jaya's charges of oppression were the subject of Administrative Disciplinary Case No. 01-026 pending before the CSC Regional Office No. 8. The petitioner concluded that since the formal charge was void, there was no legal basis for his preventive suspension. The petitioner also alleged that there was no appeal or other plain, speedy and adequate remedy in the ordinary course of law available to him.
On April 15, 2002, the trial court issued a Resolution[9] dismissing the petition. While the court ruled that the petitioner was deprived of his right to due process because some of the charges contained in the formal charge were not included in the memorandum addressed to him, the proper remedy was to file a motion for the reconsideration of the formal charge and the order of preventive suspension in the Office of the Administrator, or to appeal the same to the CSC.
The petitioner filed a motion for the reconsideration of the said order on the following grounds:
However, on May 17, 2002, the trial court issued an Order[11] denying the said motion for reconsideration. Instead of appealing the Order to the CA under Rule 41 of the Rules of Court, the petitioner filed a petition for certiorari under Rule 65, alleging that:ICONTRARY TO THE STAND OF THIS HONORABLE COURT, THERE IS NO MOTION FOR RECONSIDERATION AVAILABLE TO PETITIONER, WHICH MAY QUALIFY AS A PLAIN, SPEEDY, AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW, TO NULLIFY THE FORMAL CHARGE SUBJECT OF THE INSTANT PETITION FOR CERTIORARI.
IIHAVING DETERMINED THAT RESPONDENT ACTED WITHOUT OR IN EXCESS OF HIS JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE FORMAL CHARGE, THE HONORABLE COURT SHOULD ISSUE AN INJUNCTIVE WRIT, INSTEAD OF DISMISSING THE PETITION OUTRIGHT.[10]
GROUNDS FOR THE PETITION
On June 7, 2002, the CA issued a Resolution[13] dismissing the petition on the ground that the petitioner's recourse to Rule 65 of the 1997 Rules of Court was inappropriate. The appellate court ruled that the resolution of the trial court should have been appealed to the CA under Rule 41 of the said Rules. The petitioner filed a motion for the reconsideration of the Resolution alleging, inter alia, that the dismissal of his petition for certiorari by the trial court was without prejudice; hence, appeal by writ of error was proscribed.IHAVING DETERMINED THAT THE FORMAL CHARGE WAS EVIDENTLY WITHOUT LEGAL BASIS, RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN HE REFUSED TO ISSUE A TEMPORARY RESTRAINING ORDER AND DISMISSED THE PETITION ON A CLEARLY UNTENABLE GROUND THAT A MOTION FOR RECONSIDERATION OR AN APPEAL WAS AVAILABLE TO PETITIONER AS A PLAIN, SPEEDY, AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW TO NULLIFY THE FORMAL CHARGE.
IIRESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN HE RESOLVED PETITIONER'S MOTION FOR RECONSIDERATION ONLY AFTER AN UNREASONABLE PERIOD OF 15 DAYS DESPITE THE INJUNCTIVE NATURE AND OBVIOUS URGENCY OF THE PETITION.
IIIBEING A RELATIVE BY CONSANGUINITY WITHIN THE 6TH AND PROHIBITED DEGREE TO EUGENE SYLVESTER A. JAYA, WHOSE WIFE MARILOU J. JAYA IS ONE OF THE COMPLAINANTS FOR OPPRESSION IN THE FORMAL CHARGE AND WHO HAS A PENDING CASE AGAINST PETITIONER BEFORE THE CIVIL SERVICE COMMISSION, RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HEARING THE CASE, INSTEAD OF VOLUNTARILY INHIBITING HIMSELF FROM IT.[12]
In his comment on the said petition, the respondent averred that the petitioner was not proscribed from filing a motion for the reconsideration of the formal charge against him and his preventive suspension. He also claimed that the petition had become moot and academic, and appended a copy of an undated Order issued by the Committee on Discipline where the following were stated: (a) the period for the preventive suspension of the petitioner had already lapsed, and the petitioner had been reinstated; (b) the Committee received a motion to admit an amended complaint filed by Ibañez "to set out the true facts some of which were vaguely alleged or inadvertently omitted in the original complaint" and wherein it was alleged that the charges of oppression and violation of existing CSC Rules on time cards had been dismissed by the CSC; (c) the Committee admitted the amended complaint and ordered the charges for oppression and violation of CSC rules on time cards dismissed and recalled the remaining charges; (d) the petitioner was ordered to submit his answer on the comment to the amended complaint within five days from receipt thereof;[14] and (e) the petitioner filed a motion to clarify the Order, alleging that the Committee on Discipline erred in admitting the amended complaint after recalling the charges that had not been dismissed by the CSC.
The respondent prayed that the appellate court dismiss the petition under the second paragraph of Section 8, Rule 65 of the Rules of Court.
On November 13, 2002, the CA issued a Resolution[15] denying the petitioner's motion for reconsideration.
The petitioner then filed the present petition, contending that the CA acted contrary to case law and, in effect, sanctioned the refusal of the RTC Judge to voluntarily inhibit himself.[16]
The petitioner avers that the trial court committed a grave abuse of its discretion when it dismissed his petition for certiorari despite its findings confirming the allegations in his petition.[17] The petitioner maintains that with its findings, the trial court should have given due course and granted his petition, considering that there was no appeal, or other plain, adequate and speedy remedy in the ordinary course of law. He argues that he was proscribed by Section 16 of the Uniform Rules on Administrative Cases in the Civil Service from filing a motion for reconsideration of the formal charge against him. He asserts that the CA erred in denying his petition for certiorari on the ground that his remedy from the assailed resolution of the trial court was an appeal by writ of error. He insists that the resolution of the trial court dismissing his petition for certiorari for being premature was without prejudice; hence, non-appealable under Section 1(h), Rule 41 of the Rules of Court. The petitioner also asserts that his petitions in the CA and in this Court had not become moot and academic because the amended complaint filed against him with the Committee on Discipline was meant to harass him and to prevent the CA, and this Court, from resolving his petition on the merits. He faults the Presiding Judge of the RTC for not voluntarily inhibiting himself since he was a relative within the sixth degree of Eugene Sylvester A. Jaya, the husband of Marilou J. Jaya, one of the complainants against him on the charge of oppression.
In its comment on the petition, the respondent, through the Office of the Solicitor General, averred that:
The petition is meritorious.
- THE PRESENT PETITION HAS BEEN RENDERED MOOT AND ACADEMIC WITH THE DISMISSAL AND/OR RECALL OF THE FORMAL CHARGE AGAINST PETITIONER.[18]
- THE COURT OF APPEALS PROPERLY DISMISSED PETITIONER'S PETITION FOR CERTIORARI.[19]
- THE ALLEGED RELATIONSHIP OF THE TRIAL JUDGE TO A CERTAIN EUGENE SYLVESTER A. JAYA DID NOT PRESENT A LEGAL OBSTACLE FOR SAID JUDGE TO HEAR THE CASE BEFORE HIM.[20]
We agree with the contention of the petitioner that the resolution of the trial court dismissing his petition for certiorari on the ground of prematurity was without prejudice.[21] Under Section 1(h), Rule 41 of the Rules of Court, an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party in such case is to file a special civil action for certiorari under Rule 65 of the Rules of Court:
SECTION 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.The petitioner did file his petition for certiorari with the CA; however, the appellate court dismissed the said petition, on its erroneous ruling that the remedy of the petitioner was appeal via a writ of error under Rule 41 of the Rules of Court.
No appeal may be taken from:
...
(h) An order dismissing an action without prejudice.
In all the above instances, where the judgment or final order is not appealable, the aggrieved party may file an appropriate civil action under Rule 65.
We do not agree with the contention of the respondent that the petition has become moot and academic following the Committee on Discipline's admission of the amended complaint of Ibañez, the alleged dismissal by the CSC of the charges against the petitioner for oppression and violation of existing civil service rules on time cards, and the withdrawal of the other charges. There is an imperative need for the Court to resolve the issues as to whether the petitioner was deprived of his right to due process and whether there was a legal basis for his suspension. Finally, as we have previously ruled, courts will resolve a question, otherwise moot and academic, if it is capable of repetition yet evading review.[22]
We agree with the respondent that the petitioner was not proscribed from filing with the respondent a motion for the reconsideration of the formal charge against him. The petitioner cannot find solace in Section 16 of the Uniform Rules on Administrative Cases in the Civil Service which reads:
Section 16. Formal Charge. - After a finding of a prima facie case, the disciplining authority shall formally charge the person complained of. The formal charge shall contain a specification of charge(s), a brief statement of material or relevant facts, accompanied by certified true copies of the documentary evidence, if any, sworn statements covering the testimony of witnesses, a directive to answer the charge(s) in writing under oath in not less than seventy-two (72) hours from receipt thereof, an advice for the respondent to indicate in his answer whether or not he elects a formal investigation of the charge(s), and a notice that he is entitled to be assisted by a counsel of his choice.Although under the afore-quoted rule a party-respondent is proscribed from filing a request for clarification, bill of particulars or a motion to dismiss the formal charge as the said pleadings are obviously designed to delay the administrative proceedings, such rule does not specifically prohibit the party-respondent from filing a motion for a reconsideration of the formal charge. Case law has it that -
If the respondent has submitted his comment and counter-affidavits during the preliminary investigation, he shall be given the opportunity to submit additional evidence.
The disciplining authority shall not entertain requests for clarification, bills of particulars or motions to dismiss which are obviously designed to delay the administrative proceedings. If any of these pleadings are interposed by the respondent, the same shall be considered as an answer and shall be evaluated as such.
... Under the maxim expression unius est exclusio alterius, the mention of one thing implies the exclusion of another thing not mentioned. Thus, if a statute enumerates the things upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect. This rule, as a guide to probable legislative intent, is based upon the rules of logic and natural workings of the human mind.[23]Indeed, the rule even allows the respondent who had submitted his comment and counter-affidavits during the investigation to submit additional evidence even after the filing of the formal charge.
Likewise, under Section 21 of the said Rule, the respondent therein may file a motion for the reconsideration of an order of preventive suspension with the disciplining authority and to appeal from an adverse ruling to the CSC.
Section 21. Remedies from the Order of Preventive Suspension. - The respondent may file a motion for reconsideration with the disciplining authority or may elevate the same to the Civil Service Commission by way of an appeal within fifteen (15) days from the receipt thereof.In fine, the petitioner had a remedy in the ordinary course of law, namely, a motion for the reconsideration of the formal charge against him, including his preventive suspension.
The general rule is that the aggrieved party is mandated to exhaust all administrative remedies available before resorting to judicial recourse. The tribunal, either judicial or quasi-judicial must be given a chance to correct the imputed errors on its act or order.[24] The rule is an element of the petitioner's right to action, and if he fails or refuses to avail himself of the same, the judiciary shall decline to interfere.[25]
However, a motion for reconsideration of the assailed formal charge may not be adequate and speedy; hence, may be dispensed with by the aggrieved party who may file the appropriate judicial recourse under any of the following exceptional circumstances:
... (1) when there is a violation of due process; (2) when the issue involved is purely a legal question; (3) when the administrative action is patently illegal and amounts to lack or excess of jurisdiction; (4) when there is estoppel on the part of the administrative agency concerned; (5) when there is irreparable injury; (6) when the respondent is a department Secretary whose acts, as an alter ego of the President, bears the implied and assumed approval of the latter; (7) when to require exhaustion of administrative remedies would be unreasonable; (8) when it would amount to a nullification of a claim; (9) when the subject matter is a private land in land case proceedings; (10) when the rule does not provide a plain, speedy and adequate remedy; (11) when there are circumstances indicating the urgency of judicial intervention; and unreasonable delay would greatly prejudice the complainant; (12) when no administrative review is provided by law; (13) where the rule of qualified political agency applies; and (14) when the issue of non-exhaustion of administrative remedies has been rendered moot.[26]Relative to the second exception, there is a question of law when the doubt or difference arises as to what the law is on a certain state of facts. There is a question of fact when the doubt or difference arises as to the truth or the falsehood of the alleged facts.[27]
We agree with the petitioner's contention that the RTC acted capriciously and arbitrarily, amounting to excess or lack of jurisdiction, when it dismissed the petition for a writ of certiorari on its ruling that a motion for a reconsideration of the formal charge was a condition sine qua non to the petitioner's recourse to judicial relief.
In the present case, the issues before the trial court, based on the record before it, were legal. The trial court sustained the contention of the petitioner, and declared in its April 15, 2002 Resolution that the charges in paragraphs (a) and (e) of the formal charge were not included in the complaint of Ibañez against the petitioner; hence, the latter was deprived of his right to be informed of the charges against him and to respond thereto. The trial court also declared that the charges of oppression of the employees mentioned in charge no. 2 (except that of Jaya) had already been dismissed and yet were still included in the formal charge filed by the respondent with the Committee on Discipline, while the other charges were the subject of an inquiry and investigation by the COA special audit team. Moreover, Jaya's oppression charge against the petitioner was still pending in the CSC. In fact, the CSC had dismissed the complaint of Jaya and her appeal therefrom. The trial court, in effect, found the formal charges against the petitioner to be patently illegal, amounting to lack or excess of jurisdiction:
Petitioner alleges that the charges for grave misconduct under paragraphs (a) and (e) are not included in the consolidated list of cases; hence, its inclusion in the formal charge, without opportunity to be heard, is violative of petitioner's right to due process.The formal charge filed by the respondent against the petitioner was violative of the latter's right to due process; hence, is void ab initio and may be assailed directly or indirectly at any time, without the petitioner being required to first exhaust all administrative remedies before the respondent:
With respect to paragraphs (b), (c) and (d), the same are the subject of a special audit being undertaken by the COA and the inclusion of all these five (5) items in the formal charge are acts done by the respondent with grave abuse of discretion amounting to lack or excess of jurisdiction. In the case of (b), (c) and (d), respondent has no jurisdiction over the same.
As regards the charge of oppression with respect to Marilou Jaya, the same is the subject of a formal charge in Administrative Disciplinary Case No. 01-026 being heard by the Civil Service Commission, Regional Office No. 8. With respect to Manuel Negado and others, the charge for oppression is not included in the consolidated List of Issues and, therefore, its inclusion is violative of the petitioner's right to due process and when the termination of employment was elevated to the CSC, the same was dismissed for lack of merit and therefore this matter has already been adjudicated. The charge for Violation of CSC Law and Rules which pertains to the alleged failure to maintain Daily Time Records is not included in the consolidated list; hence, violative of petitioner's right to due process and therefore respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction.
There is no question from the record of the case that the issuance of the formal charge is not backed up by the necessary legal process making it rather irregular. All of these items included in the formal charge as violations, that is, paragraphs (a) and (e) were done in violation of the petitioner's right to due process while paragraphs (b), (c) and (d) are matters which were taken up and pending before the special audit of the COA.
With respect to the oppression charges, particularly to Marilou Jaya, the same is the subject matter of Administrative Disciplinary Case No. 01-026, which is being heard by the Civil Service Commission. As regards to Manuel Negado and others, their complaint of alleged termination of employment which was appealed to the Civil Service Commission has been dismissed for lack of merit. Evidently, this formal charge has no basis.[28]
... [T]he doctrine consistently adhered to by this Court is that a denial of due process suffices to cast on the official act taken by whatever branch of the government the impress of nullity. A decision rendered without due process is void ab initio and may be attacked directly or collaterally. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard. A void decision may be assailed or impugned at any time either directly or collaterally, by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked.[29]Indeed, in charging the petitioner anew for acts which he had been previously charged, and which charges had already been dismissed, the respondent acted contrary to law and with grave abuse of his discretion amounting to excess or lack of jurisdiction. The respondent even assumed jurisdiction over the same charges which were already the subject of a COA special audit, as well as the other charges filed with and still pending in the CSC.[30] Although the NIA has concurrent jurisdiction with the CSC over complaints involving its personnel,[31] the respondent was, nevertheless, proscribed from assuming jurisdiction over Jaya's complaint. The settled rule is that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.[32] Furthermore, it even turned out that the said complaint had been dismissed by the CSC, and such order of dismissal had become final and executory. In the interest of proper administration of justice, the respondent should have waited for the outcome of the COA audit team's investigation before charging the petitioner anew.
Instead of dismissing the petition for certiorari filed by the petitioner, the RTC should have given due course and granted the same, and nullified the formal charge and the Order of the respondent suspending the petitioner from office.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Resolutions of the Court of Appeals are SET ASIDE. The Formal Charge against petitioner Engr. Pedro C. Rubio, Jr., dated March 15, 2002, as well as the Order for his preventive suspension, are hereby NULLIFIED. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
[1] Penned by Associate Justice Mariano C. Del Castillo, with Associate Justices Conchita Carpio-Morales (now an Associate Justice of the Supreme Court) and Martin S. Villarama, Jr., concurring.
[2] Penned by Associate Justice Mariano C. Del Castillo, with Associate Justices Romeo A. Brawner and Martin S. Villarama, Jr., concurring.
[3] Rollo, pp. 68-70
[4] Id. at 67.
[5] CA Rollo, pp. 47-50.
[6] Rollo, pp. 89-90.
[7] Id. at 90.
[8] Id. at 59-94.
[9] Id. at 51-54.
[10] Id. at 96.
[11] Id. at 55-58.
[12] CA Rollo, p. 7.
[13] Id. at 104-105.
[14] Id. at 118-120.
[15] Rollo, p. 27.
[16] Id. at 13.
[17] Id. at 53.
[18] Rollo, p. 153.
[19] Id. at 156.
[20] Id. at 158.
[21] Herrera, Remedial Law, Vol. II, p. 537, citing Justice Jose Y. Feria.
[22] Province of Batangas v. Romulo, G.R. No. 152774, 27 May 2004, 429 SCRA 736; Viola v. Alunan III, G.R. No. 115844, 15 August 1997, 277 SCRA 409; Gayo v. Verceles, G.R. No. 150477, 28 February 2005.
[23] Commissioner of Internal Revenue v. Michel J. Lhuillier Pawnshop, Inc., G.R. No. 150947, 15 July 2003, 406 SCRA 178.
[24] Pefianco v. Moral, G.R. No. 132248, 19 January 2000, 322 SCRA 439.
[25] Garcia v. Court of Appeals, G.R. No. 100579, 6 June 2001, 358 SCRA 416.
[26] Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109853, 11 October 2000, 342 SCRA 549. (Emphasis supplied)
[27] Naguiat v. Court of Appeals, G.R. No. 118375, 3 October 2003, 412 SCRA 591.
[28] Rollo, pp. 52-53.
[29] Uy v. Court of Appeals, G.R. No. 109557, 29 November 2000, 346 SCRA 246.
[30] Resolution No. 99-1936 of the CSC provides that:
Section 4. Jurisdiction of the Civil Service Commission. - The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it.
Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees.
[31] Section 7. Jurisdiction of Heads of Agencies. - Heads of Departments, agencies, provinces, cities, municipalities and other instrumentalities shall have original concurrent jurisdiction, with the Commission, over their respective officers and employees.
...
- Complaints involving their respective personnel. 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 (30) days salary.