THIRD DIVISION
[ G.R. No. 170146, August 25, 2010 ]WALDO Q. FLORES v. ATTY. ANTONIO F. MONTEMAYOR +
HON. WALDO Q. FLORES, IN HIS CAPACITY AS SENIOR DEPUTY EXECUTIVE SECRETARY IN THE OFFICE OF THE PRESIDENT, HON. ARTHUR P. AUTEA, IN HIS CAPACITY AS DEPUTY EXECUTIVE SECRETARY IN THE OFFICE OF THE PRESIDENT, AND THE PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC), PETITIONERS, VS.
ATTY. ANTONIO F. MONTEMAYOR, RESPONDENT.
D E C I S I O N
WALDO Q. FLORES v. ATTY. ANTONIO F. MONTEMAYOR +
HON. WALDO Q. FLORES, IN HIS CAPACITY AS SENIOR DEPUTY EXECUTIVE SECRETARY IN THE OFFICE OF THE PRESIDENT, HON. ARTHUR P. AUTEA, IN HIS CAPACITY AS DEPUTY EXECUTIVE SECRETARY IN THE OFFICE OF THE PRESIDENT, AND THE PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC), PETITIONERS, VS.
ATTY. ANTONIO F. MONTEMAYOR, RESPONDENT.
D E C I S I O N
VILLARAMA, JR., J.:
Before us is a Rule 45 petition assailing the October 19, 2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 84254. The appellate court, in the said decision, had reversed and set aside the March 23, 2004
Decision[2] and May 13, 2004 Resolution[3] of the Office of the President in O.P. Case No. 03-1-581 finding respondent Atty. Antonio F. Montemayor administratively liable as charged and dismissing him from government
service.
The facts follow.
Respondent Atty. Antonio F. Montemayor was appointed by the President as Regional Director II of the Bureau of Internal Revenue (BIR), Region IV, in San Fernando, Pampanga.
On January 30, 2003, the Office of the President received a letter from "a concerned citizen" dated January 20, 2003 relating Montemayor's ostentatious lifestyle which is apparently disproportionate to his income as a public official. The letter was referred to Dario C. Rama, Chairman of the Presidential Anti-Graft Commission (PAGC) for appropriate action.[4] The Investigating Office of the PAGC immediately conducted a fact-finding inquiry into the matter and issued subpoenas duces tecum to the responsible personnel of the BIR and the Land Transportation Office (LTO). In compliance with the subpoena, BIR Personnel Division Chief Estelita Datu submitted to the PAGC a copy of Montemayor's appointment papers along with a certified true copy of the latter's Sworn Statement of Assets and Liabilities (SSAL) for the year 2002. Meanwhile, the LTO, through its Records Section Chief, Ms. Arabelle O. Petilla, furnished the PAGC with a record of vehicles registered to Montemayor, to wit: a 2001 Ford Expedition, a 1997 Toyota Land Cruiser, and a 1983 Mitsubishi Galant.[5]
During the pendency of the investigation, the Philippine Center for Investigative Journalism, a media organization which had previously published an article on the unexplained wealth of certain BIR officials, also submitted to the PAGC copies of Montemayor's SSAL for the years 1999, 2000 and 2001.[6] In Montemayor's 1999 and 2000 SSAL, the PAGC noted that Montemayor declared his ownership over several motor vehicles, but failed to do the same in his 2001 SSAL.[7]
On the basis of the said documents, the PAGC issued a Formal Charge[8] against Montemayor on May 19, 2003 for violation of Section 7 of Republic Act (RA) No. 3019[9] in relation to Section 8 (A) of RA No. 6713[10] due to his failure to declare the 2001 Ford Expedition with a value ranging from 1.7 million to 1.9 million pesos, and the 1997 Toyota Land Cruiser with an estimated value of 1 million to 1.2 million pesos in his 2001[11] and 2002[12] SSAL. The charge was docketed as PAGC-ADM-0149-03. On the same date, the PAGC issued an Order[13] directing Montemayor to file his counter-affidavit or verified answer to the formal charge against him within ten (10) days from the receipt of the Order. Montemayor, however, failed to submit his counter-affidavit or verified answer to the formal charge lodged against him.
On June 4, 2003, during the preliminary conference, Montemayor, through counsel, moved for the deferment of the administrative proceedings explaining that he has filed a petition for certiorari before the CA[14] questioning the PAGC's jurisdiction to conduct the administrative investigation against him. The PAGC denied Montemayor's motion for lack of merit, and instead gave him until June 9, 2003 to submit his counter-affidavit or verified answer.[15] Still, no answer was filed.
On June 23, 2003, the CA issued a Temporary Restraining Order (TRO) in CA-G.R. SP No. 77285 enjoining the PAGC from proceeding with the investigation for sixty (60) days.[16] On September 12, 2003, shortly after the expiration of the sixty (60)-day TRO, the PAGC issued a Resolution[17] finding Montemayor administratively liable as charged and recommending to the Office of the President Montemayor's dismissal from the service.
On March 23, 2004, the Office of the President, through Deputy Executive Secretary Arthur P. Autea, issued a Decision adopting in toto the findings and recommendation of the PAGC. The pertinent portion of the Decision reads:
Montemayor sought reconsideration of the said decision.[19] This time, he argued that he was denied his right to due process when the PAGC proceeded to investigate his case notwithstanding the pendency of his petition for certiorari before the CA, and its subsequent elevation to the Supreme Court.[20] The motion was eventually denied.[21]
Aggrieved, Montemayor brought the matter to the CA via a petition for review[22] under Rule 43 of the 1997 Rules of Civil Procedure, as amended. He made the following assertions: first, that the PAGC exceeded its authority when it recommended that he be dismissed from government service since the power to investigate does not necessarily carry with it the power to impose penalty unless the same was expressly granted; second, that the PAGC grossly violated his right to due process of law when it did not give him the opportunity to present his countervailing evidence to the charges against him; third, that the PAGC cannot validly proceed with the investigation of the charges against him on the basis of an unverified anonymous letter-complaint without any supporting documents attached thereto, contrary to the requirement of Section 4 (c) of Executive Order (EO) No. 12;[23] fourth, that it was an error for the Office of the President to hold him liable for violation of Section 7 of RA No. 3019 and Section 8 (A) of RA No. 6713 since the SSAL should reflect assets and liabilities acquired in the preceding year; and fifth, that the assailed PAGC Resolution was not supported by substantial evidence.
As aforesaid, the CA in its assailed Decision dated October 19, 2005, ruled in favor of Montemayor. The CA concluded that Montemayor was deprived of an opportunity to present controverting evidence amounting to a brazen denial of his right to due process.
Hence, petitioners now appeal the matter before us raising the following issues:
The issues may be summarized as follows:
We discuss the first three (3) issues jointly as these involve procedural aspects.
The PAGC was created by virtue of EO No. 12, signed on April 16, 2001 to speedily address the problem on corruption and abuses committed in the government, particularly by officials appointed by the President. Under Section 4 (b) of EO No. 12, the PAGC has the power to investigate and hear administrative complaints provided (1) that the official to be investigated must be a presidential appointee in the government or any of its agencies or instrumentalities, and (2) that the said official must be occupying the position of assistant regional director, or an equivalent rank, or higher.[25]
Respondent contends that he was deprived of his right to due process when the PAGC proceeded to investigate him on the basis of an anonymous complaint in the absence of any documents supporting the complainant's assertions.
Section 4 (c) of EO No. 12, however, states that the PAGC has the power to give due course to anonymous complaints against presidential appointees if there appears on the face of the complaint or based on the supporting documents attached to the anonymous complaint a probable cause to engender a belief that the allegations may be true.[26] The use of the conjunctive word "or" in the said provision is determinative since it empowers the PAGC to exercise discretion in giving due course to anonymous complaints. Because of the said provision, an anonymous complaint may be given due course even if the same is without supporting documents, so long as it appears from the face of the complaint that there is probable cause. The clear implication of the said provision is intent to empower the PAGC in line with the President's objective of eradicating corruption among a particular line of government officials, i.e., those directly appointed by her. Absent the conjunctive word "or," the PAGC's authority to conduct investigations based on anonymous complaints will be very limited. It will decimate the said administrative body into a toothless anti-corruption agency and will inevitably undermine the Chief Executive's disciplinary power.
Respondent also assails the PAGC's decision to proceed with the investigation process without giving him the opportunity to present controverting evidence.
The argument is without merit.
We find nothing irregular with the PAGC's decision to proceed with its investigation notwithstanding the pendency of Montemayor's petition for certiorari before the CA. The filing of a petition for certiorari with the CA did not divest the PAGC of its jurisdiction validly acquired over the case before it. Elementary is the rule that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower court or an administrative body such as the PAGC, does not interrupt the course of the latter where there is no writ of injunction restraining it.[27] For as long as no writ of injunction or restraining order is issued in the special civil action for certiorari, no impediment exists, and nothing prevents the PAGC from exercising its jurisdiction and proceeding with the case pending before its office.[28] And even if such injunctive writ or order is issued, the PAGC continues to retain jurisdiction over the principal action[29] until the question on jurisdiction is finally determined.
In the case at bar, a sixty (60)-day TRO was issued by the CA in CA-G.R. SP No. 77285. However, barely a week after the lapse of the TRO, the PAGC issued its resolution finding Montemayor administratively liable and recommending to the Office of the President his dismissal from government service. The CA believes that there has been "undue haste and apparent precipitation" in the PAGC's investigation proceedings.[30] It notes with disapproval the fact that it was barely eight (8) days after the TRO had lapsed that the PAGC issued the said resolution and explains that respondent should have been given a second chance to present evidence prior to proceeding with the issuance of the said resolution.[31]
We beg to disagree with the appellate court's observation.
First, it must be remembered that the PAGC's act of issuing the assailed resolution enjoys the presumption of regularity particularly since it was done in the performance of its official duties. Mere surmises and conjectures, absent any proof whatsoever, will not tilt the balance against the presumption, if only to provide constancy in the official acts of authorized government personnel and officials. Simply put, the timing of the issuance of the assailed PAGC resolution by itself cannot be used to discredit, much less nullify, what appears on its face to be a regular performance of the PAGC's duties.
Second, Montemayor's argument, as well as the CA's observation that respondent was not afforded a "second" opportunity to present controverting evidence, does not hold water. The essence of due process in administrative proceedings is an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of.[32] So long as the party is given the opportunity to explain his side, the requirements of due process are satisfactorily complied with.[33]
Significantly, the records show that the PAGC issued an order informing Montemayor of the formal charge filed against him and gave him ten (10) days within which to present a counter-affidavit or verified answer.[34] When the said period lapsed without respondent asking for an extension, the PAGC gave Montemayor a fresh ten (10)-day period to file his answer,[35] but the latter chose to await the decision of the CA in his petition for certiorari.[36] During the preliminary conference, Montemayor was again informed that he is given a new ten (10)-day period, or until June 19, 2003 within which to file his memorandum/position paper as well as supporting evidence with a warning that if he still fails to do so, the complaint shall be deemed submitted for resolution on the basis of available documentary evidence on record.[37] Again, the deadline lapsed without any evidence being presented by Montemayor in his defense.
We stress that the PAGC's findings and recommendations remain as recommendations until finally acted upon by the Office of the President. Montemayor, therefore, had two (2) choices upon the issuance of the PAGC resolution: to move for a reconsideration thereof, or to ask for another opportunity before the Office of the President to present his side particularly since the assailed resolution is merely recommendatory in nature. Having failed to exercise any of these two (2) options, Montemayor cannot now be allowed to seek recourse before this Court for the consequences of his own shortcomings.
Desperately, Montemayor contends that the authority of the PAGC to investigate him administratively, as well as the power of the Office of the President to act on the PAGC's recommendation, had already ceased following the initiation and filing of the administrative and criminal cases against him by the Office of the Ombudsman (Ombudsman).[38] He points out that the Ombudsman is mandated by Section 15, paragraph (1) of RA No. 6770[39] to take over the investigation and prosecution of the charges filed against him.[40]
We are still not persuaded.
The cases filed against respondent before the Ombudsman were initiated after the Office of the President decided to dismiss Montemayor.[41] More importantly, the proceedings before the PAGC were already finished even prior to the initiation and filing of cases against him by the Ombudsman. In fact, it was the PAGC's findings and recommendations which served as the basis in the Office of the President's decision to dismiss Montemayor from government service. Clearly then, the exercise by the Office of the President of its concurrent investigatory and prosecutorial power over Montemayor had already been terminated even before the Ombudsman could take cognizance over the matter. The Ombudsman, therefore, cannot take over a task that is already a fait accompli.
As to the substantive aspect, i.e., whether the PAGC's recommendation to dismiss Montemayor from government service is supported by substantial evidence, we find in favor of petitioners.
Montemayor's argument that he did not deliberately omit to declare the 2001 Ford Expedition in his 2001 SSAL and the 1997 Toyota Land Cruiser in his 2001 and 2002 SSAL fails to persuade us. Even if a motor vehicle was acquired through chattel mortgage, it is a government employee's ethical and legal obligation to declare and include the same in his SSAL. Montemayor cannot wiggle his way out of the mess he has himself created since he knows for a fact that every asset acquired by a civil servant must be declared in the SSAL. The law requires that the SSAL be accomplished truthfully and in detail without distinction as to how the property was acquired. Montemayor, therefore, cannot escape liability by arguing that the ownership of the 2001 Ford Expedition has not yet passed to him on the basis of a lame excuse that the said vehicle was acquired only on installment basis sometime on July 3, 2001.[42]
Montemayor also argues that even if ownership of the said vehicle had been transferred to him upon acquisition, the vehicle was sold to another person on December 15, 2002;[43] hence, there is no need to declare it in his 2001 SSAL. Respondent's reasoning is anemic and convoluted. It is evasive of the fact that the said vehicle was not reported in his 2001 SSAL. Notably, the acquisition value of the 2001 Ford Expedition was P1,599,000.00[44] is significantly greater than the amount declared by Montemayor under "machinery/equipment," worth P1,321,212.50, acquired by him as of December 31, 2001,[45] and to the P1,251,675.00 worth of "machinery/ equipment" acquired by him as of December 31, 2002.[46] This belies Montemayor's claim that the said vehicle has been included among the "machinery/equipment" assets he declared in his 2001 and 2002 SSAL.[47] Neither did Montemayor satisfactorily reflect the P1,000,000.00 that has come to his hands as payment for the alleged sale of his 2001 Ford Expedition in his 2002 SSAL.[48]
Respondent apparently fails to understand that the SSAL is not a mere scrap of paper. The law requires that the SSAL must be accomplished as truthfully, as detailed and as accurately as possible. The filing thereof not later than the first fifteen (15) days of April at the close of every calendar year must not be treated as a simple and trivial routine, but as an obligation that is part and parcel of every civil servant's duty to the people. It serves as the basis of the government and the people in monitoring the income and lifestyle of officials and employees in the government in compliance with the Constitutional policy to eradicate corruption,[49] promote transparency in government,[50] and ensure that all government employees and officials lead just and modest lives.[51] It is for this reason that the SSAL must be sworn to and is made accessible to the public, subject to reasonable administrative regulations.
Montemayor's repeated and consistent failure to reflect truthfully and adequately all his assets and liabilities in his SSAL betrays his claim of innocence and good faith. Accordingly, we find that the penalty of dismissal from government service, as sanctioned by Section 11 (a) and (b) of RA No. 6713,[52] meted by the Office of the President against him, is proper.
WHEREFORE, the petition is GRANTED. The assailed Decision dated October 19, 2005 of the Court of Appeals in CA-G.R. SP No. 84254 is REVERSED and SET ASIDE. Accordingly, the March 23, 2004 Decision and the May 13, 2004 Resolution of the Office of the President in O.P. Case No. 03-1-581 are REINSTATED and UPHELD.
Respondent Atty. Antonio F. Montemayor is hereby DISMISSED from government service.
SO ORDERED.
Carpio Morales, (Chairperson), Brion, and Sereno, JJ., concur.
Bersamin, J., pls. see dissenting opinion..
[1] Rollo, pp. 56-67. Penned by Associate Justice Rosmari D. Carandang, with Associate Justice (now Presiding Justice) Andres B. Reyes, Jr. and Associate Justice Monina Arevalo-Zenarosa concurring.
[2] Id. at 86-91.
[3] Id. at 92-93.
[4] Id. at 69.
[5] CA rollo, pp. 73-74.
[6] Id. at 70-72.
[7] Id.
[8] Rollo, p. 71.
[9] Section 7 of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, provides in full:
SEC. 7. Statement of Assets and Liabilities. - Every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or Chief of an independent office, with the Office of the President, a true, detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their first statement on or before the fifteenth day of April following the close of the said calendar year.
[10] Section 8 (A) of RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, as amended, provides in part:
SEC. 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, the assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.
(A) Statement of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.
x x x x
All public officials and employees required under this section to file the aforestated documents shall also execute within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman, to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible the year when they first assumed any office in the Government.
[11] CA rollo, p. 72.
[12] Id. at 91-92.
[13] Id. at 50-51.
[14] Docketed as CA-G.R. SP No. 77285. See CA rollo, pp. 53-66.
[15] CA rollo, pp. 83-85.
[16] Id. at 87.
[17] In PAGC-ADM-0149-03. See rollo, pp. 72-85.
[18] Rollo, p. 90.
[19] CA rollo, pp. 35-45.
[20] Docketed as G.R. No. 160443. The said petition for review on certiorari was eventually dismissed through a minute Resolution dated January 26, 2004. See rollo, p. 170.
[21] Rollo, pp. 92-93.
[22] CA rollo, pp. 4-26.
[23] Section 4 (c) of EO No. 12, series of 2001, entitled "Creating the Presidential Anti-Graft Commission and Providing for its Powers, Duties and Functions and for Other Purposes," provides:
SECTION 4. Jurisdiction, Powers and Functions. -
x x x x
(c) Anonymous complaints against a presidential appointee shall not be given due course unless there appears on its face or the supporting documents attached to the anonymous complaint a probable cause to engender a belief that the allegations may be true.
[24] Rollo, pp. 233-234.
[25] Section 4 (b) of EO No. 12, series of 2001, provides in full:
SECTION 4. Jurisdiction, Powers and Functions. -
x x x x
(b) The Commission, acting as a collegial body, shall have the authority to investigate or hear administrative cases or complaints against all presidential appointees in the government and any of its agencies or instrumentalities (including members of the governing board of any instrumentality, regulatory agency, chartered institution and directors or officers appointed or nominated by the President to government-owned or controlled corporations or corporations where the government has a minority interest or who otherwise represent the interests of the government), occupying the position of assistant regional director, or an equivalent rank, and higher, otherwise classified as Salary Grade "26" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758). In the same manner, the Commission shall have jurisdiction to investigate a non-presidential appointee who may have acted in conspiracy or may have been involved with a presidential appointee or ranking officer mentioned in this subsection. The Commission shall have no jurisdiction over members of the Armed Forces of the Philippines and the Philippine National Police.
[26] Supra note 23.
[27] Santiago v. Vasquez, G.R. Nos. 99289-90, January 27, 1993, 217 SCRA 633, 647.
[28] Id. at 647-648.
[29] Id. at 648.
[30] Rollo, p. 62.
[31] Id. at 62-64.
[32] Arboleda v. National Labor Relations Commission, G.R. No. 119509, February 11, 1999, 303 SCRA 38, 45.
[33] Calma v. Court of Appeals, G.R. No. 122787, February 9, 1999, 302 SCRA 682, 689.
[34] Rollo, pp. 132-133.
[35] Id. at 149-150.
[36] Id. at 151-154.
[37] Id. at 155-158.
[38] Docketed as OMB-C-A-04-0096-C and OMB-C-C-04-0084-C.
[39] Paragraph (1) of Section 15 of RA No. 6770, otherwise known as the Ombudsman Act of 1989, provides in part:
SEC. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;
x x x x
[40] Rollo, pp. 182-183.
[41] Id. at 204-205.
[42] Id. at 109-110 and 127-129.
[43] Id. at 110 and 130.
[44] Id. at 129.
[45] CA rollo, p. 72 and unnumbered reverse page.
[46] Supra note 12.
[47] Id. at 18.
[48] Rollo, p. 130; CA rollo, pp. 91-92.
[49] Section 27, Art. II of the 1987 Constitution provides in full:
SEC. 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
[50] Section 28, Art. II of the 1987 Constitution provides in full:
SEC. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
[51] Section 1, Art. XI of the 1987 Constitution provides in full:
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
[52] Section 11 of RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, as amended, provides in full:
SEC. 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity committing any violation of this Act, shall be punished with a fine not exceeding the equivalent of six (6) months salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000.00) or both, and in the discretion of the court of competent jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.
x x x x
BERSAMIN, J.:
I vote to deny the petition.
Firstly, I believe that the Court of Appeals (CA) correctly held that the petitioner had not been afforded his right to due process.
And, secondly, assuming that the investigation of the respondent by the Presidential Anti-Graft Commission (PAGC) was sustainable, and that the Office of the President (OP) validly relied on PAGC's findings and recommendation, the penalty of dismissal was too harsh.
Antecedents
The PAGC investigated the respondent, Atty. Antonio F. Montemayor, a Regional Director II of the Bureau of Internal Revenue in San Fernando, Pampanga, based on an anonymous letter-complaint. Following its fact-finding inquiry, the PAGC concluded that the respondent had failed to declare in his 2001 and 2002 Sworn Statement of Assets and Liability (SSAL) the fact that in 2001 he had acquired a 2001 model Ford Expedition and a Toyota Land Cruiser.[1]
The PAGC then directed the respondent to file his counter-affidavit or verified answer.[2] However, he failed to submit his counter-affidavit or verified answer.
On June 4, 2003, the respondent moved[3] for the deferment of the proceedings due to his filing of a petition for certiorari in the CA (CA-G.R. SP No. 77285), in order to challenge the PAGC's jurisdiction to conduct an administrative investigation against him. The PAGC denied the motion for deferment, and instead required him to submit his counter-affidavit or verified answer until June 9, 2003 and his position paper on or before June 19, 2003.[4] Still, he filed neither a counter-affidavit or verified answer nor a position paper.
On June 23, 2010, the CA issued a temporary restraining order (TRO),[5] enjoining the PAGC from investigating the respondent. The TRO lapsed after 60 days.
On September 1, 2003, which was shortly after the lapse of the TRO but during the pendency of CA-G.R. SP No. 77285, the PAGC came up with a resolution,[6] whereby it found the respondent guilty as administratively charged and recommended his dismissal from government service to the OP.
It is noteworthy that the respondent was not given a copy of the prejudicial PAGC resolution.
On March 23, 2004, the OP issued its decision,[7] adopting the findings and recommendation of the PAGC in full, and decreeing thus:
The respondent sought reconsideration of the OP decision, arguing that he had been denied his right to due process; that PAGC had overstepped its bounds; and that the decision had erred in holding him liable for violation of Section 7, RA 3019, as amended, and/or Section 8, RA 6713.
The OP denied the motion through the resolution dated May, 13, 2004.
The respondent thus went to the CA on appeal via petition for review (Rule 43 of the Rules of Court).[8]
In its decision dated October 19, 2005,[9] the CA held in favor of the respondent and set aside the decision of the OP, mainly because the CA found that the respondent had been deprived of the opportunity to present controverting evidence amounting to a denial of his right to due process; and because a public document attached to the record tended to show "in no uncertain terms that petitioner was justified when he did not include and declare the 2001 Ford Expedition in his 2002 SSAL." The CA decreed:
The petitioners, through the Office of the Solicitor General, are now before us to assail the CA decision.
Submissions
The reasons for my vote to deny the petition follow.
A.
The respondent was denied due process
Section 2(3), Article IX-B of the Constitution provides that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law."Both the Civil Service Law and the Administrative Code of 1987 reflect this constitutional edict of security of tenure for employees in the Civil Service.
The guarantee of security of tenure under the Constitution and the statutes is an important cornerstone of the Civil Service system instituted in our country, because it secures for a faithful employee permanence of employment, at least for the period prescribed by law, and frees the employee from the fear of political and personal reprisals.[11]
Being a Regional Director II of the Bureau of Internal Revenue in San Fernando, Pampanga, the respondent occupied a Career Executive Service Position, which was included in the Civil Service and protected with security of tenure pursuant to Presidential Decree No. 807 (Civil Service Law).[12] He might be removed only for cause and in accordance with procedural due process.[13] Consequently, that the respondent was a presidential appointee did not give the appointing authority the license to remove him at will or at the appointing authority's pleasure.
However, the records show that the PAGC subjected the respondent to a unilateral investigation and did not afford due process of law to him. The PAGC crowned its investigation with the rushed resolution issued only a few days from the expiration of the TRO issued by the CA. Such resolution became the basis for the OP to decide against him by dismissing him from the service.
I submit that the investigation of the PAGC suffered from fundamental defects and flaws that infirmed the OP's decision against the respondent.
Firstly, the respondent's non-submission of his counter-affidavit or verified answer as directed by PAGC was not motivated by bad faith, considering his firm belief, then and now, that the PAGC did not have jurisdiction to administratively or disciplinarily investigate him. On the contrary, his non-submission should not be taken against him, for his act of bringing the suit in the CA precisely to challenge the PAGC's jurisdiction singularly exhibited his undeterred resolve to contest the charges made against him.
Secondly, there was a rush on the part of the PAGC to find the respondent guilty of the charges. The rush was clearly manifested in the issuance by the PAGC of its resolution against him even without taking into consideration any explanation and refutation of the charges that he might make, and even before the CA could finally resolve his suit to challenge the PAGC's jurisdiction to investigate him.
The rush of the PAGC to find the respondent guilty of the charges and to recommend his dismissal from the service did not escape the attention of the CA, which forthrightly observed, viz:[14]
Yet, simple prudence and innate fairness should have dictated that the PAGC first accorded to the respondent an opportunity to respond to the charges once the TRO issued by the CA expired without the writ of injunction being issued - simple prudence, considering that his challenge to the PAGC's jurisdiction remained at that point an issue still to be resolved by the CA; and innate fairness, considering that he was entitled to all safeguards because his honor, reputation, and career were on the line. That opportunity would be to enable him to render his explanation in his defense; after all, there was no urgency to discipline him! Denying him such opportunity was ignoring his right to be heard upon a matter that put his entire career on the line.
Thirdly, the majority consider the respondent to have abandoned his right to present evidence by failing to move for a reconsideration of the PAGC resolution, or seeking another opportunity to present his side.
I submit that the respondent did not abandon his right to present evidence. For one, the records bear out that the PAGC resolution came to his knowledge for the first time only when he received the OP decision dated March 23, 2004. Before then, he had not been furnished any copy of the PAGC resolution. Surely, he had no opportunity to move for reconsideration of the resolution before the PAGC. Moreover, I cannot but note that he quickly assailed the OP decision dated March 23, 2004 (which he had received only on April 14, 2004)[15] by timely filing on April 19, 2004 a Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint,[16] wherein he rendered his explanation and refutation of the charges leveled against him.
And, fourthly, the recitals of the OP resolution dated May 13, 2004 (denying the respondent's Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint) disclose that the OP entirely adopted the findings and recommendation of the PAGC, viz:
I contend that the OP's complete reliance on the PAGC's findings and recommendation constituted a gross violation of administrative due process as set forth in Ang Tibay v. Court of Industrial Relations,[18] to wit:
It is clear from Ang Tibay that the OP should have itself reviewed and appreciated the evidence presented and independently considered the facts and the law of the controversy, because the PAGC was only the OP's fact-finding subordinate. The OP could not just accept the entire findings and recommendation of the PAGC in arriving at a decision, considering that such a shortcut was unfair and impermissible. Thereby, the OP took for granted the fact that at stake were the honor, the reputation, and the livelihood of the person administratively charged.[19] The OP's action consequently left its decision bereft of proper factual and legal basis.
Furthermore, the OP's statement that the respondent's arguments in his Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint were "a mere reiteration of matters previously considered" was a patent untruth. The OP conveniently and unfoundedly ignored that neither the PAGC nor the OP had earlier considered and taken into account his evidence and explanation (of the alleged failure to disclose the acquired vehicles in his SAL) which were being presented in the case only for the first time through the Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint.
Would the result be probably different had the OP itself considered and passed upon the explanation and evidence submitted in the Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint?
I maintain so.
The OP, if objective and fair-minded, was likely not to have immediately adopted the PAGC's findings and recommendation, but, instead, would have easily found in favor of the respondent, for there were good and valid reasons towards that end. The CA held so in its decision:[20]
Also, the OP's statement in the resolution dated May 13, 2004 that the "findings of fact and conclusions of any adjudicative body, which can be considered as a trier of facts on specific matters within its field of expertise, should be considered as binding and conclusive upon the appellate courts when supported by substantial evidence" unraveled yet another weakness infecting the OP's decision against the respondent. The statement spotlighted two fundamental errors, namely: one, contrary to the Ang Tibay dictum, the OP did not itself consider and pass upon the evidence and explanation being submitted by the respondent for the first time; and, two, the OP unwarrantedly considered itself appellate in relation to the PAGC.
Having just explained the first of the fundamental errors, I need only to expound on the second one now.
I wish to stress that the President's power to investigate and discipline a presidential appointee was original, not appellate. If we were to accord deference to the rule of delegata potestas delegare non potest, therefore, such original power could not be delegated to the subordinate PAGC, in the absence of any law that expressly authorized the delegation, for the rule was rooted in the ethical principle that delegated power constituted not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment, not through the intervening mind of another.[21] This inevitably signified that the OP should directly exercise its power, instead of simply adopting the PAGC's entire findings and recommendation.
Yet, by holding itself as an appellate body in relation to the PAGC, which, in the first place, was not even performing adjudicative powers, and by deeming itself bound and concluded by the PAGC's findings and recommendation, the OP committed manifest grave abuse of discretion in the exercise of its vaunted power to investigate and discipline. The OP's jurisdictional error should be overturned.
B.
Penalty of dismissal was too harsh
The OP dismissed the respondent for his failure to declare some vehicles in his 2001 and 2002 SSAL, viz:
In proceeding against the respondent, both the PAGC and the OP relied upon the following provisions of Republic Act No. 6713,[23] thus:
It is clear from the foregoing provisions, however, that the penalty for a violation of the provisions of RA 6713 , inclusive of the failure to accomplish and submit SSAL under Section 8, supra, is not exclusively removal or dismissal of the erring public official or employee. Section 11 (b) should be applied in conjunction with Section 11 (a), which specifies a punishment of either a (1) fine not exceeding the equivalent of six months salary, or (2) suspension not exceeding one year, or (3) removal, depending on the gravity of the offense. Thus, although Section 11 (b) states that a violation of the provisions of RA 6713, if proven in a proper administrative proceeding and warranted depending on the gravity of the offense, shall be sufficient cause for the removal or dismissal of the public official or employee even without a criminal prosecution, such provision cannot be understood as immediately warranting dismissal without due regard to the gravity of the offense.
Moreover, Section 12 of RA 6713 entrusts the primary responsibility to administer and enforce RA 6713 in the Civil Service Commission (CSC); and expressly vests in the CSC the authority to promulgate rules and regulations necessary to carry out the provisions of RA 6713. For that purpose, the CSC promulgated the Omnibus Rules implementing Book V of Executive Order No. 292 and other pertinent Civil Service Laws, which relevantly provide:
The OP meted dismissal from the service on the respondent. In so doing, the OP ignored that under the implementing rules and regulations of the CSC, the failure to file the SSAL was only a less grave offense, which left the omission to declare certain assets in the SSAL to be not a grave offense.
As a result, there was a great disparity between the violation or offense committed by the respondent, on one hand, and the penalty imposed on him, on the other hand.We should not allow the disparity to last, for a grave injustice is committed in the name of justice when the penalty imposed is grossly disproportionate to the wrong committed.[24] The disparity is offensive to our consistent adherence to the principle that the penalty to be imposed on any erring employee must be commensurate with the gravity of his offense.[25] As we held in Civil Service Commission v. Ledesma:[26]
In fine, even assuming that the respondent failed to correctly include some assets in his SSAL, his failure did not warrant his immediate dismissal upon his first violation.
IN VIEW OF THE FOREGOING, I vote to deny the petition.
[1] Rollo, pp. 7-8.
[2] Id., pp. 132-133.
[3] CA Rollo, pp. 77-80.
[4] Id., pp. 83-86.
[5] Id., pp. 87-88.
[6] Rollo, pp. 72-85.
[7] Id., pp. 86-91.
[8] CA Rollo, pp. 4-26.
[9] CA Decision penned by Justice Rosmari D. Carandang, and concurred in by Associate Justices Andres B. Reyes, Jr. (now Presiding Justice of the CA) and Monina Arevalo-Zenarosa (retired); rollo, pp. 56-67.
[10] Id., p. 66.
[11] Batangas State University v. Bonifacio, G.R. No. 1677762, December 15, 2005, 478 SCRA 142, 148.
[12] Section 5 of P.D. 807 provides:
Section. 5. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: x x x
3. Positions in the Career Service; namely Undersecretary x x x Regional Director x x x and other officers of equivalent rank as may be identified by the Career Service Board, all of whom are appointed by the President;
x x x
[13] See Larin v. Executive Secreatary, G.R. No. 112745, October 16, 1997, 280 SCRA 713, 725.
[14] Rollo, pp. 62-64.
[15] Rollo, pp. 86-91.
[16] CA Rollo, pp. 35-45.
[17] Underscoring is supplied for emphasis only.
[18] 69 Phil. 635, (1940).
[19] DOH v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 454.
[20] Rollo, pp. 65-66.
[21] United States v. Barrias, 11 Phil. 327, 330 (1908).
[22] Rollo, p. 90.
[23] An Act Establishing A Code Of Conduct And Ethical Standards For Public Officials And Employees, To Uphold The Time-Honored Principle Of Public Office Being A Public Trust, Granting Incentives And Rewards For Exemplary Service, Enumerating Prohibited Acts And Transactions And Providing Penalties For Violations Thereof, And For Other Purposes.
[24] HSBC v. NLRC, G.R. No. 116542, July 30, 1996, 260 SCRA 49, 56.
[25] Manila Memorial Park Cemetery, Inc. v. Delia V. Panado, G.R. No. 154521. September 30, 2005.
[26] G.R. No. 154521, September 30, 2005, 471 SCRA 589, 611.
[27] A.M. No. RTJ-00-1562, November 23, 200, 370 SCRA 423.
The facts follow.
Respondent Atty. Antonio F. Montemayor was appointed by the President as Regional Director II of the Bureau of Internal Revenue (BIR), Region IV, in San Fernando, Pampanga.
On January 30, 2003, the Office of the President received a letter from "a concerned citizen" dated January 20, 2003 relating Montemayor's ostentatious lifestyle which is apparently disproportionate to his income as a public official. The letter was referred to Dario C. Rama, Chairman of the Presidential Anti-Graft Commission (PAGC) for appropriate action.[4] The Investigating Office of the PAGC immediately conducted a fact-finding inquiry into the matter and issued subpoenas duces tecum to the responsible personnel of the BIR and the Land Transportation Office (LTO). In compliance with the subpoena, BIR Personnel Division Chief Estelita Datu submitted to the PAGC a copy of Montemayor's appointment papers along with a certified true copy of the latter's Sworn Statement of Assets and Liabilities (SSAL) for the year 2002. Meanwhile, the LTO, through its Records Section Chief, Ms. Arabelle O. Petilla, furnished the PAGC with a record of vehicles registered to Montemayor, to wit: a 2001 Ford Expedition, a 1997 Toyota Land Cruiser, and a 1983 Mitsubishi Galant.[5]
During the pendency of the investigation, the Philippine Center for Investigative Journalism, a media organization which had previously published an article on the unexplained wealth of certain BIR officials, also submitted to the PAGC copies of Montemayor's SSAL for the years 1999, 2000 and 2001.[6] In Montemayor's 1999 and 2000 SSAL, the PAGC noted that Montemayor declared his ownership over several motor vehicles, but failed to do the same in his 2001 SSAL.[7]
On the basis of the said documents, the PAGC issued a Formal Charge[8] against Montemayor on May 19, 2003 for violation of Section 7 of Republic Act (RA) No. 3019[9] in relation to Section 8 (A) of RA No. 6713[10] due to his failure to declare the 2001 Ford Expedition with a value ranging from 1.7 million to 1.9 million pesos, and the 1997 Toyota Land Cruiser with an estimated value of 1 million to 1.2 million pesos in his 2001[11] and 2002[12] SSAL. The charge was docketed as PAGC-ADM-0149-03. On the same date, the PAGC issued an Order[13] directing Montemayor to file his counter-affidavit or verified answer to the formal charge against him within ten (10) days from the receipt of the Order. Montemayor, however, failed to submit his counter-affidavit or verified answer to the formal charge lodged against him.
On June 4, 2003, during the preliminary conference, Montemayor, through counsel, moved for the deferment of the administrative proceedings explaining that he has filed a petition for certiorari before the CA[14] questioning the PAGC's jurisdiction to conduct the administrative investigation against him. The PAGC denied Montemayor's motion for lack of merit, and instead gave him until June 9, 2003 to submit his counter-affidavit or verified answer.[15] Still, no answer was filed.
On June 23, 2003, the CA issued a Temporary Restraining Order (TRO) in CA-G.R. SP No. 77285 enjoining the PAGC from proceeding with the investigation for sixty (60) days.[16] On September 12, 2003, shortly after the expiration of the sixty (60)-day TRO, the PAGC issued a Resolution[17] finding Montemayor administratively liable as charged and recommending to the Office of the President Montemayor's dismissal from the service.
On March 23, 2004, the Office of the President, through Deputy Executive Secretary Arthur P. Autea, issued a Decision adopting in toto the findings and recommendation of the PAGC. The pertinent portion of the Decision reads:
After a circumspect study of the case, this Office fully agrees with the recommendation of PAGC and the legal premises as well as the factual findings that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his failure, but he opted to let the opportunity pass by.
WHEREFORE, premises considered, respondent Antonio F. Montemayor is hereby found administratively liable as charged and, as recommended by PAGC, meted the penalty of dismissal from the service, with all accessory penalties.
SO ORDERED.[18]
Montemayor sought reconsideration of the said decision.[19] This time, he argued that he was denied his right to due process when the PAGC proceeded to investigate his case notwithstanding the pendency of his petition for certiorari before the CA, and its subsequent elevation to the Supreme Court.[20] The motion was eventually denied.[21]
Aggrieved, Montemayor brought the matter to the CA via a petition for review[22] under Rule 43 of the 1997 Rules of Civil Procedure, as amended. He made the following assertions: first, that the PAGC exceeded its authority when it recommended that he be dismissed from government service since the power to investigate does not necessarily carry with it the power to impose penalty unless the same was expressly granted; second, that the PAGC grossly violated his right to due process of law when it did not give him the opportunity to present his countervailing evidence to the charges against him; third, that the PAGC cannot validly proceed with the investigation of the charges against him on the basis of an unverified anonymous letter-complaint without any supporting documents attached thereto, contrary to the requirement of Section 4 (c) of Executive Order (EO) No. 12;[23] fourth, that it was an error for the Office of the President to hold him liable for violation of Section 7 of RA No. 3019 and Section 8 (A) of RA No. 6713 since the SSAL should reflect assets and liabilities acquired in the preceding year; and fifth, that the assailed PAGC Resolution was not supported by substantial evidence.
As aforesaid, the CA in its assailed Decision dated October 19, 2005, ruled in favor of Montemayor. The CA concluded that Montemayor was deprived of an opportunity to present controverting evidence amounting to a brazen denial of his right to due process.
Hence, petitioners now appeal the matter before us raising the following issues:
- WHETHER PETITIONER PAGC HAD A CONSTITUTIONAL DUTY TO ACCORD RESPONDENT A "SECOND" OPPORTUNITY TO PRESENT EVIDENCE IN PAGC-ADM-0149-03 AFTER THE EXPIRATION OF THE TRO ISSUED IN CA-G.R. SP NO. 77285.
- WHETHER THE MERE PENDENCY OF CA-G.R. SP NO. 77285 WAS A LEGAL GROUND FOR RESPONDENT'S REFUSAL TO PRESENT EVIDENCE IN [PAGC]-ADM-0149-03.
- WHETHER THE ALLEGED UNDUE HASTE AND APPARENT PRECIPITATION OF PROCEEDINGS IN [PAGC]-ADM-0149-03 HAD RENDERED THE SAME INFIRM.
- WHETHER RESPONDENT HAD COMMITTED A MAJOR ADMINISTRATIVE INFRACTION WARRANTING DISMISSAL FROM [GOVERNMENT] SERVICE.
- WHETHER THE [OFFICE OF THE PRESIDENT'S] DETERMINATION THAT RESPONDENT COMMITTED THE ADMINISTRATIVE OFFENSE CHARGED IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
- WHETHER THE PAGC HAD AUTHORITY TO RECOMMEND TO THE PRESIDENT THE PENALTY OF DISMISSAL, FOLLOWING ITS INVESTIGATION INITIATED BY AN ANONYMOUS COMPLAINT, AND DESPITE THE PENDENCY OF ANOTHER INVESTIGATION FOR THE SAME OFFENSE BEFORE THE [OFFICE OF THE] OMBUDSMAN.[24]
The issues may be summarized as follows:
- WHETHER RESPONDENT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS WHEN IT PROCEEDED TO INVESTIGATE HIM ON THE BASIS OF AN ANONYMOUS COMPLAINT, AND ALLEGEDLY WITHOUT AN OPPORTUNITY TO PRESENT EVIDENCE IN HIS DEFENSE;
- WHETHER THE PAGC HAS THE AUTHORITY TO RECOMMEND RESPONDENT'S DISMISSAL FROM THE SERVICE;
- WHETHER THE ASSUMPTION BY THE OFFICE OF THE OMBUDSMAN OF ITS JURISDICTION TO INVESTIGATE RESPONDENT FOR THE SAME OFFENSE DEPRIVED THE PAGC [WITH ITS JURISDICTION] FROM PROCEEDING WITH ITS INVESTIGATION; AND
- WHETHER THE PAGC'S RECOMMENDATION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE.
We discuss the first three (3) issues jointly as these involve procedural aspects.
The PAGC was created by virtue of EO No. 12, signed on April 16, 2001 to speedily address the problem on corruption and abuses committed in the government, particularly by officials appointed by the President. Under Section 4 (b) of EO No. 12, the PAGC has the power to investigate and hear administrative complaints provided (1) that the official to be investigated must be a presidential appointee in the government or any of its agencies or instrumentalities, and (2) that the said official must be occupying the position of assistant regional director, or an equivalent rank, or higher.[25]
Respondent contends that he was deprived of his right to due process when the PAGC proceeded to investigate him on the basis of an anonymous complaint in the absence of any documents supporting the complainant's assertions.
Section 4 (c) of EO No. 12, however, states that the PAGC has the power to give due course to anonymous complaints against presidential appointees if there appears on the face of the complaint or based on the supporting documents attached to the anonymous complaint a probable cause to engender a belief that the allegations may be true.[26] The use of the conjunctive word "or" in the said provision is determinative since it empowers the PAGC to exercise discretion in giving due course to anonymous complaints. Because of the said provision, an anonymous complaint may be given due course even if the same is without supporting documents, so long as it appears from the face of the complaint that there is probable cause. The clear implication of the said provision is intent to empower the PAGC in line with the President's objective of eradicating corruption among a particular line of government officials, i.e., those directly appointed by her. Absent the conjunctive word "or," the PAGC's authority to conduct investigations based on anonymous complaints will be very limited. It will decimate the said administrative body into a toothless anti-corruption agency and will inevitably undermine the Chief Executive's disciplinary power.
Respondent also assails the PAGC's decision to proceed with the investigation process without giving him the opportunity to present controverting evidence.
The argument is without merit.
We find nothing irregular with the PAGC's decision to proceed with its investigation notwithstanding the pendency of Montemayor's petition for certiorari before the CA. The filing of a petition for certiorari with the CA did not divest the PAGC of its jurisdiction validly acquired over the case before it. Elementary is the rule that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower court or an administrative body such as the PAGC, does not interrupt the course of the latter where there is no writ of injunction restraining it.[27] For as long as no writ of injunction or restraining order is issued in the special civil action for certiorari, no impediment exists, and nothing prevents the PAGC from exercising its jurisdiction and proceeding with the case pending before its office.[28] And even if such injunctive writ or order is issued, the PAGC continues to retain jurisdiction over the principal action[29] until the question on jurisdiction is finally determined.
In the case at bar, a sixty (60)-day TRO was issued by the CA in CA-G.R. SP No. 77285. However, barely a week after the lapse of the TRO, the PAGC issued its resolution finding Montemayor administratively liable and recommending to the Office of the President his dismissal from government service. The CA believes that there has been "undue haste and apparent precipitation" in the PAGC's investigation proceedings.[30] It notes with disapproval the fact that it was barely eight (8) days after the TRO had lapsed that the PAGC issued the said resolution and explains that respondent should have been given a second chance to present evidence prior to proceeding with the issuance of the said resolution.[31]
We beg to disagree with the appellate court's observation.
First, it must be remembered that the PAGC's act of issuing the assailed resolution enjoys the presumption of regularity particularly since it was done in the performance of its official duties. Mere surmises and conjectures, absent any proof whatsoever, will not tilt the balance against the presumption, if only to provide constancy in the official acts of authorized government personnel and officials. Simply put, the timing of the issuance of the assailed PAGC resolution by itself cannot be used to discredit, much less nullify, what appears on its face to be a regular performance of the PAGC's duties.
Second, Montemayor's argument, as well as the CA's observation that respondent was not afforded a "second" opportunity to present controverting evidence, does not hold water. The essence of due process in administrative proceedings is an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of.[32] So long as the party is given the opportunity to explain his side, the requirements of due process are satisfactorily complied with.[33]
Significantly, the records show that the PAGC issued an order informing Montemayor of the formal charge filed against him and gave him ten (10) days within which to present a counter-affidavit or verified answer.[34] When the said period lapsed without respondent asking for an extension, the PAGC gave Montemayor a fresh ten (10)-day period to file his answer,[35] but the latter chose to await the decision of the CA in his petition for certiorari.[36] During the preliminary conference, Montemayor was again informed that he is given a new ten (10)-day period, or until June 19, 2003 within which to file his memorandum/position paper as well as supporting evidence with a warning that if he still fails to do so, the complaint shall be deemed submitted for resolution on the basis of available documentary evidence on record.[37] Again, the deadline lapsed without any evidence being presented by Montemayor in his defense.
We stress that the PAGC's findings and recommendations remain as recommendations until finally acted upon by the Office of the President. Montemayor, therefore, had two (2) choices upon the issuance of the PAGC resolution: to move for a reconsideration thereof, or to ask for another opportunity before the Office of the President to present his side particularly since the assailed resolution is merely recommendatory in nature. Having failed to exercise any of these two (2) options, Montemayor cannot now be allowed to seek recourse before this Court for the consequences of his own shortcomings.
Desperately, Montemayor contends that the authority of the PAGC to investigate him administratively, as well as the power of the Office of the President to act on the PAGC's recommendation, had already ceased following the initiation and filing of the administrative and criminal cases against him by the Office of the Ombudsman (Ombudsman).[38] He points out that the Ombudsman is mandated by Section 15, paragraph (1) of RA No. 6770[39] to take over the investigation and prosecution of the charges filed against him.[40]
We are still not persuaded.
The cases filed against respondent before the Ombudsman were initiated after the Office of the President decided to dismiss Montemayor.[41] More importantly, the proceedings before the PAGC were already finished even prior to the initiation and filing of cases against him by the Ombudsman. In fact, it was the PAGC's findings and recommendations which served as the basis in the Office of the President's decision to dismiss Montemayor from government service. Clearly then, the exercise by the Office of the President of its concurrent investigatory and prosecutorial power over Montemayor had already been terminated even before the Ombudsman could take cognizance over the matter. The Ombudsman, therefore, cannot take over a task that is already a fait accompli.
As to the substantive aspect, i.e., whether the PAGC's recommendation to dismiss Montemayor from government service is supported by substantial evidence, we find in favor of petitioners.
Montemayor's argument that he did not deliberately omit to declare the 2001 Ford Expedition in his 2001 SSAL and the 1997 Toyota Land Cruiser in his 2001 and 2002 SSAL fails to persuade us. Even if a motor vehicle was acquired through chattel mortgage, it is a government employee's ethical and legal obligation to declare and include the same in his SSAL. Montemayor cannot wiggle his way out of the mess he has himself created since he knows for a fact that every asset acquired by a civil servant must be declared in the SSAL. The law requires that the SSAL be accomplished truthfully and in detail without distinction as to how the property was acquired. Montemayor, therefore, cannot escape liability by arguing that the ownership of the 2001 Ford Expedition has not yet passed to him on the basis of a lame excuse that the said vehicle was acquired only on installment basis sometime on July 3, 2001.[42]
Montemayor also argues that even if ownership of the said vehicle had been transferred to him upon acquisition, the vehicle was sold to another person on December 15, 2002;[43] hence, there is no need to declare it in his 2001 SSAL. Respondent's reasoning is anemic and convoluted. It is evasive of the fact that the said vehicle was not reported in his 2001 SSAL. Notably, the acquisition value of the 2001 Ford Expedition was P1,599,000.00[44] is significantly greater than the amount declared by Montemayor under "machinery/equipment," worth P1,321,212.50, acquired by him as of December 31, 2001,[45] and to the P1,251,675.00 worth of "machinery/ equipment" acquired by him as of December 31, 2002.[46] This belies Montemayor's claim that the said vehicle has been included among the "machinery/equipment" assets he declared in his 2001 and 2002 SSAL.[47] Neither did Montemayor satisfactorily reflect the P1,000,000.00 that has come to his hands as payment for the alleged sale of his 2001 Ford Expedition in his 2002 SSAL.[48]
Respondent apparently fails to understand that the SSAL is not a mere scrap of paper. The law requires that the SSAL must be accomplished as truthfully, as detailed and as accurately as possible. The filing thereof not later than the first fifteen (15) days of April at the close of every calendar year must not be treated as a simple and trivial routine, but as an obligation that is part and parcel of every civil servant's duty to the people. It serves as the basis of the government and the people in monitoring the income and lifestyle of officials and employees in the government in compliance with the Constitutional policy to eradicate corruption,[49] promote transparency in government,[50] and ensure that all government employees and officials lead just and modest lives.[51] It is for this reason that the SSAL must be sworn to and is made accessible to the public, subject to reasonable administrative regulations.
Montemayor's repeated and consistent failure to reflect truthfully and adequately all his assets and liabilities in his SSAL betrays his claim of innocence and good faith. Accordingly, we find that the penalty of dismissal from government service, as sanctioned by Section 11 (a) and (b) of RA No. 6713,[52] meted by the Office of the President against him, is proper.
WHEREFORE, the petition is GRANTED. The assailed Decision dated October 19, 2005 of the Court of Appeals in CA-G.R. SP No. 84254 is REVERSED and SET ASIDE. Accordingly, the March 23, 2004 Decision and the May 13, 2004 Resolution of the Office of the President in O.P. Case No. 03-1-581 are REINSTATED and UPHELD.
Respondent Atty. Antonio F. Montemayor is hereby DISMISSED from government service.
SO ORDERED.
Carpio Morales, (Chairperson), Brion, and Sereno, JJ., concur.
Bersamin, J., pls. see dissenting opinion..
[1] Rollo, pp. 56-67. Penned by Associate Justice Rosmari D. Carandang, with Associate Justice (now Presiding Justice) Andres B. Reyes, Jr. and Associate Justice Monina Arevalo-Zenarosa concurring.
[2] Id. at 86-91.
[3] Id. at 92-93.
[4] Id. at 69.
[5] CA rollo, pp. 73-74.
[6] Id. at 70-72.
[7] Id.
[8] Rollo, p. 71.
[9] Section 7 of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, provides in full:
SEC. 7. Statement of Assets and Liabilities. - Every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or Chief of an independent office, with the Office of the President, a true, detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their first statement on or before the fifteenth day of April following the close of the said calendar year.
[10] Section 8 (A) of RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, as amended, provides in part:
SEC. 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, the assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.
(A) Statement of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.
x x x x
All public officials and employees required under this section to file the aforestated documents shall also execute within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman, to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible the year when they first assumed any office in the Government.
[11] CA rollo, p. 72.
[12] Id. at 91-92.
[13] Id. at 50-51.
[14] Docketed as CA-G.R. SP No. 77285. See CA rollo, pp. 53-66.
[15] CA rollo, pp. 83-85.
[16] Id. at 87.
[17] In PAGC-ADM-0149-03. See rollo, pp. 72-85.
[18] Rollo, p. 90.
[19] CA rollo, pp. 35-45.
[20] Docketed as G.R. No. 160443. The said petition for review on certiorari was eventually dismissed through a minute Resolution dated January 26, 2004. See rollo, p. 170.
[21] Rollo, pp. 92-93.
[22] CA rollo, pp. 4-26.
[23] Section 4 (c) of EO No. 12, series of 2001, entitled "Creating the Presidential Anti-Graft Commission and Providing for its Powers, Duties and Functions and for Other Purposes," provides:
SECTION 4. Jurisdiction, Powers and Functions. -
x x x x
(c) Anonymous complaints against a presidential appointee shall not be given due course unless there appears on its face or the supporting documents attached to the anonymous complaint a probable cause to engender a belief that the allegations may be true.
[24] Rollo, pp. 233-234.
[25] Section 4 (b) of EO No. 12, series of 2001, provides in full:
SECTION 4. Jurisdiction, Powers and Functions. -
x x x x
(b) The Commission, acting as a collegial body, shall have the authority to investigate or hear administrative cases or complaints against all presidential appointees in the government and any of its agencies or instrumentalities (including members of the governing board of any instrumentality, regulatory agency, chartered institution and directors or officers appointed or nominated by the President to government-owned or controlled corporations or corporations where the government has a minority interest or who otherwise represent the interests of the government), occupying the position of assistant regional director, or an equivalent rank, and higher, otherwise classified as Salary Grade "26" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758). In the same manner, the Commission shall have jurisdiction to investigate a non-presidential appointee who may have acted in conspiracy or may have been involved with a presidential appointee or ranking officer mentioned in this subsection. The Commission shall have no jurisdiction over members of the Armed Forces of the Philippines and the Philippine National Police.
[26] Supra note 23.
[27] Santiago v. Vasquez, G.R. Nos. 99289-90, January 27, 1993, 217 SCRA 633, 647.
[28] Id. at 647-648.
[29] Id. at 648.
[30] Rollo, p. 62.
[31] Id. at 62-64.
[32] Arboleda v. National Labor Relations Commission, G.R. No. 119509, February 11, 1999, 303 SCRA 38, 45.
[33] Calma v. Court of Appeals, G.R. No. 122787, February 9, 1999, 302 SCRA 682, 689.
[34] Rollo, pp. 132-133.
[35] Id. at 149-150.
[36] Id. at 151-154.
[37] Id. at 155-158.
[38] Docketed as OMB-C-A-04-0096-C and OMB-C-C-04-0084-C.
[39] Paragraph (1) of Section 15 of RA No. 6770, otherwise known as the Ombudsman Act of 1989, provides in part:
SEC. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;
x x x x
[40] Rollo, pp. 182-183.
[41] Id. at 204-205.
[42] Id. at 109-110 and 127-129.
[43] Id. at 110 and 130.
[44] Id. at 129.
[45] CA rollo, p. 72 and unnumbered reverse page.
[46] Supra note 12.
[47] Id. at 18.
[48] Rollo, p. 130; CA rollo, pp. 91-92.
[49] Section 27, Art. II of the 1987 Constitution provides in full:
SEC. 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.
[50] Section 28, Art. II of the 1987 Constitution provides in full:
SEC. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
[51] Section 1, Art. XI of the 1987 Constitution provides in full:
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
[52] Section 11 of RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, as amended, provides in full:
SEC. 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity committing any violation of this Act, shall be punished with a fine not exceeding the equivalent of six (6) months salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000.00) or both, and in the discretion of the court of competent jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.
x x x x
DISSENTING OPINION
BERSAMIN, J.:
I vote to deny the petition.
Firstly, I believe that the Court of Appeals (CA) correctly held that the petitioner had not been afforded his right to due process.
And, secondly, assuming that the investigation of the respondent by the Presidential Anti-Graft Commission (PAGC) was sustainable, and that the Office of the President (OP) validly relied on PAGC's findings and recommendation, the penalty of dismissal was too harsh.
The PAGC investigated the respondent, Atty. Antonio F. Montemayor, a Regional Director II of the Bureau of Internal Revenue in San Fernando, Pampanga, based on an anonymous letter-complaint. Following its fact-finding inquiry, the PAGC concluded that the respondent had failed to declare in his 2001 and 2002 Sworn Statement of Assets and Liability (SSAL) the fact that in 2001 he had acquired a 2001 model Ford Expedition and a Toyota Land Cruiser.[1]
The PAGC then directed the respondent to file his counter-affidavit or verified answer.[2] However, he failed to submit his counter-affidavit or verified answer.
On June 4, 2003, the respondent moved[3] for the deferment of the proceedings due to his filing of a petition for certiorari in the CA (CA-G.R. SP No. 77285), in order to challenge the PAGC's jurisdiction to conduct an administrative investigation against him. The PAGC denied the motion for deferment, and instead required him to submit his counter-affidavit or verified answer until June 9, 2003 and his position paper on or before June 19, 2003.[4] Still, he filed neither a counter-affidavit or verified answer nor a position paper.
On June 23, 2010, the CA issued a temporary restraining order (TRO),[5] enjoining the PAGC from investigating the respondent. The TRO lapsed after 60 days.
On September 1, 2003, which was shortly after the lapse of the TRO but during the pendency of CA-G.R. SP No. 77285, the PAGC came up with a resolution,[6] whereby it found the respondent guilty as administratively charged and recommended his dismissal from government service to the OP.
It is noteworthy that the respondent was not given a copy of the prejudicial PAGC resolution.
On March 23, 2004, the OP issued its decision,[7] adopting the findings and recommendation of the PAGC in full, and decreeing thus:
WHEREFORE, premises considered, respondent Antonio F. Montemayor is hereby found administratively liable as charged and, as recommended by PAGC, meted the penalty of dismissal from the service, with all accessory penalties.
SO ORDERED.
The respondent sought reconsideration of the OP decision, arguing that he had been denied his right to due process; that PAGC had overstepped its bounds; and that the decision had erred in holding him liable for violation of Section 7, RA 3019, as amended, and/or Section 8, RA 6713.
The OP denied the motion through the resolution dated May, 13, 2004.
The respondent thus went to the CA on appeal via petition for review (Rule 43 of the Rules of Court).[8]
In its decision dated October 19, 2005,[9] the CA held in favor of the respondent and set aside the decision of the OP, mainly because the CA found that the respondent had been deprived of the opportunity to present controverting evidence amounting to a denial of his right to due process; and because a public document attached to the record tended to show "in no uncertain terms that petitioner was justified when he did not include and declare the 2001 Ford Expedition in his 2002 SSAL." The CA decreed:
WHEREFORE, premises considered, finding the impropriety of petitioner's discharge from government service on ground of violation of due process, the herein impugned March 23, 2004 Decision and May 13, 2004 Resolution of the Office of the President are hereby REVERSED and SET ASIDE.
SO ORDERED.[10]
The petitioners, through the Office of the Solicitor General, are now before us to assail the CA decision.
The reasons for my vote to deny the petition follow.
The respondent was denied due process
Section 2(3), Article IX-B of the Constitution provides that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law."Both the Civil Service Law and the Administrative Code of 1987 reflect this constitutional edict of security of tenure for employees in the Civil Service.
The guarantee of security of tenure under the Constitution and the statutes is an important cornerstone of the Civil Service system instituted in our country, because it secures for a faithful employee permanence of employment, at least for the period prescribed by law, and frees the employee from the fear of political and personal reprisals.[11]
Being a Regional Director II of the Bureau of Internal Revenue in San Fernando, Pampanga, the respondent occupied a Career Executive Service Position, which was included in the Civil Service and protected with security of tenure pursuant to Presidential Decree No. 807 (Civil Service Law).[12] He might be removed only for cause and in accordance with procedural due process.[13] Consequently, that the respondent was a presidential appointee did not give the appointing authority the license to remove him at will or at the appointing authority's pleasure.
However, the records show that the PAGC subjected the respondent to a unilateral investigation and did not afford due process of law to him. The PAGC crowned its investigation with the rushed resolution issued only a few days from the expiration of the TRO issued by the CA. Such resolution became the basis for the OP to decide against him by dismissing him from the service.
I submit that the investigation of the PAGC suffered from fundamental defects and flaws that infirmed the OP's decision against the respondent.
Firstly, the respondent's non-submission of his counter-affidavit or verified answer as directed by PAGC was not motivated by bad faith, considering his firm belief, then and now, that the PAGC did not have jurisdiction to administratively or disciplinarily investigate him. On the contrary, his non-submission should not be taken against him, for his act of bringing the suit in the CA precisely to challenge the PAGC's jurisdiction singularly exhibited his undeterred resolve to contest the charges made against him.
Secondly, there was a rush on the part of the PAGC to find the respondent guilty of the charges. The rush was clearly manifested in the issuance by the PAGC of its resolution against him even without taking into consideration any explanation and refutation of the charges that he might make, and even before the CA could finally resolve his suit to challenge the PAGC's jurisdiction to investigate him.
The rush of the PAGC to find the respondent guilty of the charges and to recommend his dismissal from the service did not escape the attention of the CA, which forthrightly observed, viz:[14]
After a careful analysis of the procedural antecedents surrounding the instant case vis-à-vis the foregoing doctrine on the matter of due process, it did not escape Us that undue haste and apparent precipitation attended the proceedings before the PAGC, which ultimately recommended the dismissal of petitioner from government service to the OP. Quite clearly, the PAGC issued the September 1, 2003 Resolution/Report recommending to the Office of the President petitioner's discharge by relying solely upon the documentary evidence that it secured from the BIR, LTO, and PCIJ, and without having the benefit of passing upon and evaluating the evidence that petitioner might have to offer to establish that he does not deserve to be discharged from government service. It is to be remembered that in a resolution promulgated on June 23, 2003 in CA-G.R. SP No. 77285, this Court issued a 60-day Temporary Restraining Order enjoining the PAGC from concluding further administrative proceedings against petitioner. Technically speaking, in the name of fair play, petitioner should have been afforded by PAGC a reasonable opportunity to present evidence after the expiration of the 60-day TRO. Such, though, was not to be the case. As it turned out, the PAGC immediately issued the Resolution/Report to recommend petitioner's dismissal from government service just barely eight days after the TRO in CA-G.R. SP No. 77285 has lapsed, and without anymore requiring or directing petitioner to adduce evidence to show his innocence. Certainly, the undue haste that attended the issuance of the PAGC "dismissal-recommendation", which was referred to the OP, practically precluded and foreclosed any opportunity on the part of petitioner to rebut and defend himself against the administrative charge leveled against him. And this, to the well-considered view of this Court is tantamount to a denial of petitioner's right to due process of law, specifically considering that the administrative sanction involved herein is by no means trivial and ignorable, but on the contrary, the same involved termination from government service which is the ultimate and harshest penalty that may be meted upon a government personnel. This being so, under the circumstances, the OP should have taken notice of the suddenness of the issuance of the recommendation of the PAGC, and the fact that the same was anchored principally and solely upon the documents obtained from the BIR, LTO, and PCIJ, but without any rebuttal or countervailing evidence coming from petitioner, and a combination of these facts should have led the OP to refuse to adopt and be swayed by the PAGC recommendation on ground that petitioner's right to be heard and present evidence may have been rendered at naught.
Yet, simple prudence and innate fairness should have dictated that the PAGC first accorded to the respondent an opportunity to respond to the charges once the TRO issued by the CA expired without the writ of injunction being issued - simple prudence, considering that his challenge to the PAGC's jurisdiction remained at that point an issue still to be resolved by the CA; and innate fairness, considering that he was entitled to all safeguards because his honor, reputation, and career were on the line. That opportunity would be to enable him to render his explanation in his defense; after all, there was no urgency to discipline him! Denying him such opportunity was ignoring his right to be heard upon a matter that put his entire career on the line.
Thirdly, the majority consider the respondent to have abandoned his right to present evidence by failing to move for a reconsideration of the PAGC resolution, or seeking another opportunity to present his side.
I submit that the respondent did not abandon his right to present evidence. For one, the records bear out that the PAGC resolution came to his knowledge for the first time only when he received the OP decision dated March 23, 2004. Before then, he had not been furnished any copy of the PAGC resolution. Surely, he had no opportunity to move for reconsideration of the resolution before the PAGC. Moreover, I cannot but note that he quickly assailed the OP decision dated March 23, 2004 (which he had received only on April 14, 2004)[15] by timely filing on April 19, 2004 a Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint,[16] wherein he rendered his explanation and refutation of the charges leveled against him.
And, fourthly, the recitals of the OP resolution dated May 13, 2004 (denying the respondent's Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint) disclose that the OP entirely adopted the findings and recommendation of the PAGC, viz:
This refers to the motion of Antonio F. Montemayor seeking reconsideration of the Decision of this Office dated March 23, 2004, and accordingly prays that a new one be rendered, reversing and setting aside the earlier decision, ultimately exonerating him from the charges.
It will be recalled that this Office, in the assailed Decision, fully agreed with the recommendation of the Presidential Anti-Graft Commission (PAGC), upholding the legal premises and factual findings contained in said decision.
Movant raises the following grounds:
The motion has to fail. The issues raised involve factual matter, which movants attempts to argue prolifically. However, as held in the earlier Decision of this Office, the "findings of fact and conclusions of any adjudicative body, which can be considered as a trier of facts on specific matters within its field of expertise, should be considered as binding and conclusive upon the appellate courts when supported by substantial evidence, as they were in a better position to assess and evaluate the credibility of the contending parties and the validity of their respective evidence"
- Respondent was deprived of due process.
- PAGC overstepped its bounds.
- The Decision erred in holding respondent liable for violation of Section 7, RA 3019, as amended, and/or Section 8 of RA 6713.
Upon due consideration, this Office finds no cogent reason to disturb its earlier Decision. We have carefully reviewed the arguments raised in the instant motion and find the same to be a mere reiteration of matters previously considered and found to be without merit in the assailed decision. A motion for reconsideration which does not make out "any new matter sufficiently persuasive to induce modification of judgment will be denied."[17]
I contend that the OP's complete reliance on the PAGC's findings and recommendation constituted a gross violation of administrative due process as set forth in Ang Tibay v. Court of Industrial Relations,[18] to wit:
- There must be a hearing, which includes the right to present one's case and to submit evidence in support thereof;
- The tribunal must consider the evidence presented;
- The decision must have something to support itself;
- The evidence must be substantial;
- The decision must be rendered on the evidence presented at the hearing or, at least, contained in the record and disclosed to the parties;
- The tribunal or any of its judges must act on its or his own independent consideration of the facts and the law of the controversy, and not simply accept the views of a subordinate in arriving at a decision; and
- The board or body 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 decision.
It is clear from Ang Tibay that the OP should have itself reviewed and appreciated the evidence presented and independently considered the facts and the law of the controversy, because the PAGC was only the OP's fact-finding subordinate. The OP could not just accept the entire findings and recommendation of the PAGC in arriving at a decision, considering that such a shortcut was unfair and impermissible. Thereby, the OP took for granted the fact that at stake were the honor, the reputation, and the livelihood of the person administratively charged.[19] The OP's action consequently left its decision bereft of proper factual and legal basis.
Furthermore, the OP's statement that the respondent's arguments in his Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint were "a mere reiteration of matters previously considered" was a patent untruth. The OP conveniently and unfoundedly ignored that neither the PAGC nor the OP had earlier considered and taken into account his evidence and explanation (of the alleged failure to disclose the acquired vehicles in his SAL) which were being presented in the case only for the first time through the Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint.
Would the result be probably different had the OP itself considered and passed upon the explanation and evidence submitted in the Motion for Reconsideration With Motion For Leave To Admit Explanation/Refutation of Complaint?
I maintain so.
The OP, if objective and fair-minded, was likely not to have immediately adopted the PAGC's findings and recommendation, but, instead, would have easily found in favor of the respondent, for there were good and valid reasons towards that end. The CA held so in its decision:[20]
Furthermore, a public document attached on record tends to show in no uncertain terms that petitioner was justified when he did not include and declare the 2001 Ford Expedition in his 2002 SSAL. Apparently, petitioner already conveyed and transferred the ownership over the 2001 Ford Expedition in favor of a certain Raymundo Ramon P. Lacson on the strength of a duly notarized Deed of Sale of Motor Vehicle executed on December 15, 2002 (Rollo p. 39). Perforce, while it may have been true that petitioner still remains as the registered owner of the 2001 Ford Expedition, this supposed ownership extends only in so far as LTO registration and recording purposes are concerned, but strictly and legally speaking, real and actual ownership over the subject automobile has already been completely divested and effectively transferred from petitioner to Raymundo Ramon P. Lacson. In the case of Aguilar, Sr. vs. Commercial Savings Bank (360 SCRA 395), the High Court pronounced, in essence, that automobile registration is required not to make said registration the operative act to determine the identity of the person to whom the ownership over the subject automobile is actually transferred and vested. Unlike in land registration cases, the administrative proceeding of registration does not bear any essential relation to the contract of sale between the parties (Chinchilla v. Rafael & Verdague, 39 Phil. 888). The main aim of motor vehicle registration is merely to identify the registered owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefore can be fixed on a definite and specific individual, that is, the registered owner. Bringing this instructive doctrine to the fore, it is clear that while petitioner is still the owner of the 2001 Ford Expedition per LTO registration, the contrary is true as far as the actual facts are concerned, for the real owner of the said automobile since December 15, 2002 is already Raymundo Ramon P. Lacson. Simply put, petitioner not being the owner of the 2001 Ford Expedition anymore as early as December 15, 2002, there is no longer any legal necessity or obligation for him to include and declare the said automobile in his 2002 SSAL, which covers only those properties actually owned by petitioner as of December 31, 2002.
Also, the OP's statement in the resolution dated May 13, 2004 that the "findings of fact and conclusions of any adjudicative body, which can be considered as a trier of facts on specific matters within its field of expertise, should be considered as binding and conclusive upon the appellate courts when supported by substantial evidence" unraveled yet another weakness infecting the OP's decision against the respondent. The statement spotlighted two fundamental errors, namely: one, contrary to the Ang Tibay dictum, the OP did not itself consider and pass upon the evidence and explanation being submitted by the respondent for the first time; and, two, the OP unwarrantedly considered itself appellate in relation to the PAGC.
Having just explained the first of the fundamental errors, I need only to expound on the second one now.
I wish to stress that the President's power to investigate and discipline a presidential appointee was original, not appellate. If we were to accord deference to the rule of delegata potestas delegare non potest, therefore, such original power could not be delegated to the subordinate PAGC, in the absence of any law that expressly authorized the delegation, for the rule was rooted in the ethical principle that delegated power constituted not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment, not through the intervening mind of another.[21] This inevitably signified that the OP should directly exercise its power, instead of simply adopting the PAGC's entire findings and recommendation.
Yet, by holding itself as an appellate body in relation to the PAGC, which, in the first place, was not even performing adjudicative powers, and by deeming itself bound and concluded by the PAGC's findings and recommendation, the OP committed manifest grave abuse of discretion in the exercise of its vaunted power to investigate and discipline. The OP's jurisdictional error should be overturned.
Penalty of dismissal was too harsh
The OP dismissed the respondent for his failure to declare some vehicles in his 2001 and 2002 SSAL, viz:
After a circumspect study of the case, this Office fully agrees with the findings that hold it together. Respondent failed to disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his failure, but he opted to let the opportunity pass by.
WHEREFORE, premises considered, respondent Antonio F. Montemayor is hereby found administratively liable as charged and, as recommended by PAGC, meted the penalty of dismissal from the service, with all accessory penalties.
SO ORDERED.[22]
In proceeding against the respondent, both the PAGC and the OP relied upon the following provisions of Republic Act No. 6713,[23] thus:
Section 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.
(A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households.
x x x
Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.
x x x
Section 12. Promulgation of Rules and Regulations, Administration and Enforcement of this Act. - The Civil Service Commission shall have the primary responsibility for the administration and enforcement of this Act. It shall transmit all cases for prosecution arising from violations of this Act to the proper authorities for appropriate action: Provided, however, That it may institute such administrative actions and disciplinary measures as may be warranted in accordance with law. Nothing in this provision shall be construed as a deprivation of the right of each House of Congress to discipline its Members for disorderly behavior.
The Civil Service Commission is hereby authorized to promulgate rules and regulations necessary to carry out the provisions of this Act, including guidelines for individuals who render free voluntary service to the Government. The Ombudsman shall likewise take steps to protect citizens who denounce acts or omissions of public officials and employees which are in violation of this Act.
It is clear from the foregoing provisions, however, that the penalty for a violation of the provisions of RA 6713 , inclusive of the failure to accomplish and submit SSAL under Section 8, supra, is not exclusively removal or dismissal of the erring public official or employee. Section 11 (b) should be applied in conjunction with Section 11 (a), which specifies a punishment of either a (1) fine not exceeding the equivalent of six months salary, or (2) suspension not exceeding one year, or (3) removal, depending on the gravity of the offense. Thus, although Section 11 (b) states that a violation of the provisions of RA 6713, if proven in a proper administrative proceeding and warranted depending on the gravity of the offense, shall be sufficient cause for the removal or dismissal of the public official or employee even without a criminal prosecution, such provision cannot be understood as immediately warranting dismissal without due regard to the gravity of the offense.
Moreover, Section 12 of RA 6713 entrusts the primary responsibility to administer and enforce RA 6713 in the Civil Service Commission (CSC); and expressly vests in the CSC the authority to promulgate rules and regulations necessary to carry out the provisions of RA 6713. For that purpose, the CSC promulgated the Omnibus Rules implementing Book V of Executive Order No. 292 and other pertinent Civil Service Laws, which relevantly provide:
RULE XIV DISCIPLINE
Section 16. In the determination of penalties to be imposed, mitigating and aggravating circumstances may be considered. Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper party, otherwise, the said circumstances shall not be considered in the determination of the proper penalty to be imposed against the respondent concerned.
Section 17. If the respondent is found guilty of two or more charges or counts, the penalty imposed should be that corresponding to the most serious charge or count and the rest may be considered as aggravating circumstances.
Section 18. The imposition of the penalty shall be made in accordance with the manner herein below detailed, provided the penalty attached to the offense is divisible into minimum, and maximum, to wit:
(a) The minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are present;
(b) The medium of the penalty shall be imposed where no mitigating and aggravating circumstances are present or when both are present they equally offset each other;
(c) The maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present;
Where aggravating and mitigating circumstances are present, the minimum of the penalty shall be applied where there are more mitigating circumstances present; the medium period if the circumstances equally offset each other; and the minimum where there are more aggravating circumstances.
x x x
Section 23. Administrative offenses with its corresponding penalties are classified into grave, less grave, and light depending on the gravity of its nature and effects of said acts on the government service
x x x
The following are less grave offenses with their corresponding penalties:
x x x
(i) Failure to file Sworn Statements of Assets, Liabilities and Networth, and Disclosure of Business Interest and Financial Connections including those of their spouse and unmarried children under eighteen years of age living in their households
1st offense - Suspension for one (1) month and one (1) day to six months
2nd offense- Dismissal.
The OP meted dismissal from the service on the respondent. In so doing, the OP ignored that under the implementing rules and regulations of the CSC, the failure to file the SSAL was only a less grave offense, which left the omission to declare certain assets in the SSAL to be not a grave offense.
As a result, there was a great disparity between the violation or offense committed by the respondent, on one hand, and the penalty imposed on him, on the other hand.We should not allow the disparity to last, for a grave injustice is committed in the name of justice when the penalty imposed is grossly disproportionate to the wrong committed.[24] The disparity is offensive to our consistent adherence to the principle that the penalty to be imposed on any erring employee must be commensurate with the gravity of his offense.[25] As we held in Civil Service Commission v. Ledesma:[26]
We stress that the law does not tolerate misconduct by a civil servant.Public service is a public trust, and whoever breaks that trust is subject to sanction. Dismissal and forfeiture of benefits, however, are not penalties imposed for all infractions, particularly when it is a first offense.There must be substantial evidence that grave misconduct or some other grave offense meriting dismissal under the law was committed.It is not amiss to cite Cavite Crusade for Good Governance v. Judge Cajigal,[27] where the Court found the respondent presiding judge of the Regional Trial Court in Cavite guilty of violation of Section 7 of RA 3019 and Section 8 of RA 6713 for his failure to file on time his SSAL and his non-filing of his SSAL in some years. In imposing the penalty against him, the Court gave due consideration to his service in the Judiciary and to the fact that he later filed his SSAL, and suspended him for six months without pay but ordered him to pay a fine of P20,000.00, with a stern warning that a repetition of the same or similar acts would be dealt with more severely.
In fine, even assuming that the respondent failed to correctly include some assets in his SSAL, his failure did not warrant his immediate dismissal upon his first violation.
IN VIEW OF THE FOREGOING, I vote to deny the petition.
[1] Rollo, pp. 7-8.
[2] Id., pp. 132-133.
[3] CA Rollo, pp. 77-80.
[4] Id., pp. 83-86.
[5] Id., pp. 87-88.
[6] Rollo, pp. 72-85.
[7] Id., pp. 86-91.
[8] CA Rollo, pp. 4-26.
[9] CA Decision penned by Justice Rosmari D. Carandang, and concurred in by Associate Justices Andres B. Reyes, Jr. (now Presiding Justice of the CA) and Monina Arevalo-Zenarosa (retired); rollo, pp. 56-67.
[10] Id., p. 66.
[11] Batangas State University v. Bonifacio, G.R. No. 1677762, December 15, 2005, 478 SCRA 142, 148.
[12] Section 5 of P.D. 807 provides:
Section. 5. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: x x x
3. Positions in the Career Service; namely Undersecretary x x x Regional Director x x x and other officers of equivalent rank as may be identified by the Career Service Board, all of whom are appointed by the President;
x x x
[13] See Larin v. Executive Secreatary, G.R. No. 112745, October 16, 1997, 280 SCRA 713, 725.
[14] Rollo, pp. 62-64.
[15] Rollo, pp. 86-91.
[16] CA Rollo, pp. 35-45.
[17] Underscoring is supplied for emphasis only.
[18] 69 Phil. 635, (1940).
[19] DOH v. Camposano, G.R. No. 157684, April 27, 2005, 457 SCRA 438, 454.
[20] Rollo, pp. 65-66.
[21] United States v. Barrias, 11 Phil. 327, 330 (1908).
[22] Rollo, p. 90.
[23] An Act Establishing A Code Of Conduct And Ethical Standards For Public Officials And Employees, To Uphold The Time-Honored Principle Of Public Office Being A Public Trust, Granting Incentives And Rewards For Exemplary Service, Enumerating Prohibited Acts And Transactions And Providing Penalties For Violations Thereof, And For Other Purposes.
[24] HSBC v. NLRC, G.R. No. 116542, July 30, 1996, 260 SCRA 49, 56.
[25] Manila Memorial Park Cemetery, Inc. v. Delia V. Panado, G.R. No. 154521. September 30, 2005.
[26] G.R. No. 154521, September 30, 2005, 471 SCRA 589, 611.
[27] A.M. No. RTJ-00-1562, November 23, 200, 370 SCRA 423.