PubOff 12

Rosales v. Mijares

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 55904 affirming Resolution No. 991208[2] of the Civil Service Commission (CSC) granting the appeal of the respondent herein from the Order dated September 24, 1998 dismissing the respondent as Municipal Engineer of Catarman, Northern Samar; and Resolution No. 992130 denying the motion for reconsideration thereof.

As culled by the appellate court from the records, the antecedents are as follows:

Being the duly-elected mayor of Catarman, Northern Samar, during the 1998 local elections, Francisco C. Rosales, Jr. (or “petitioner”) assumed office on July 1, 1999. Shortly thereafter, petitioner summoned the department heads for a conference, among whom was the municipal engineer, Miguel H. Mijares (or “respondent”).

During the meeting, petitioner told respondent to resign under pain of abolition of his position. Not wishing to antagonize the mayor, respondent informed him a week later that he was “open” to the possibility of being transferred or detailed at the Provincial Engineering Office. Then and there, petitioner instructed respondent to prepare his papers.

On August 3, 1998, petitioner indorsed respondent to the provincial governor of Northern Samar for consideration for the position of Assistant Provincial Engineer. On August 12, 1998, petitioner wrote to respondent stating:

Your request to transfer to the Provincial Engineering Office, Catarman, Northern Samar, is granted for a period of thirty (30) days from receipt hereof, subject to the condition imposed by Civil Service Law, rules and regulations.

Meanwhile, respondent continued reporting for work at the Municipal Engineer’s Office. However, the provincial governor did not act on petitioner’s endorsement. On September 24, 1998, petitioner again wrote to respondent, this time informing him of his separation, viz:

The 30-day period given to you to transfer to the Provincial Engineering Office has now elapsed and, in as much as

you did not seek an extension of your permit to transfer, you are considered resigned from this government unit as of September 13, 1996, pursuant to MC No. 38, S. 1993 of the Civil Service Commission. In a letter dated October 2, 1998, respondent requested petitioner to withdraw the above-quoted separation letter. He pointed out that since the request for transfer to the Provincial Engineer’s Office was not acted upon, the same never became effective and, therefore, he did not cease to be an employee of the municipal government.

In his reply letter dated October 15, 1998, petitioner explained that respondent was not terminated and that his separation from the service was by operation of law, i.e., Civil Service Commission (or “CSC”) Memorandum Circular (or “MC”) No. 38, S. 1993. In the same communication, petitioner offered to reinstate respondent. On November 12, 1998, respondent filed a complaint for illegal termination against

petitioner before the CSC. Treating the complaint as an appeal, the Director of CSC Regional Office No. 8 instructed Victoria E. Valeriano (or “Ms. Valeriano”), Head Civil Service Field Officer in Catarman, to conduct a fact-finding investigation on respondent’s case. Pursuant to the directive, Ms. Valeriano asked petitioner to submit the original of respondent’s request for transfer. In a letter dated January 11, 1998, petitioner informed Ms. Valeriano that respondent’s request was merely verbal. In an order dated April 16, 1999, the CSC Office of Legal Affairs required petitioner to comment on the appeal. Complying with the directive, petitioner explained that respondent’s separation was valid and legal under CSC MC No. 38, S. 1993, since the latter’s permit to transfer to the Provincial Engineer’s Office expired without his transfer being effected. In support of his defense, petitioner appended his documentary evidence to his comment, including the legal opinions of the CSC Regional Office and the Provincial Prosecutor upholding the validity of his action. On June 17, 1999, the CSC issued a resolution, the decretal portion of which resolution (sic) reads:

WHEREFORE, the appeal of Miguel H. Mijares is hereby granted. Accordingly, Mayor Francisco C. Rosales, Jr. is directed to immediately reinstate Mijares to his former position of Municipal Engineer and to cause the payment of all his salaries and other benefits from the date of his unlawful separation from the service up to his actual reinstatement. [3]

The CSC held that the respondent did not freely and voluntarily seek permission from the petitioner to transfer to another office and that based on the record, the supposed transfer of the respondent to the Office of the Provincial Engineer was a shrewd machination or clever ploy resorted to by the petitioner to oust the respondent from his position as Municipal Engineer; hence, such transfer was illegal. The CSC cited the rulings of this Court in Sta. Maria v. Lopez[4] and Divinagracia, Jr. v. Sto. Tomas.[5] The CSC also ruled that a request for transfer, under CSC Memorandum Circular No. 98-38, must be in writing; and that even assuming that a verbal request for transfer may be made, the petitioner failed to adduce any proof that the respondent made such verbal request, as well as the date of the effectivity of the transfer. The CSC cited its ruling in CSC Resolution No. 99-1616 dated July 20, 1999. The CSC declared that the letter of the petitioner to the respondent dated August 12, 1998 was

but a detail of the respondent to the Office of the Provincial Engineer.

The petitioner’s motion for a reconsideration of the resolution was denied by the CSC per its Resolution No. 992130.

The petitioner, thereafter, filed a petition for review with the CA assailing the resolutions of the CSC. On December 20, 2001, the CA rendered a decision dismissing the petition and affirming the resolutions of the CSC. The appellate court affirmed in toto not only the finding of the CSC, but also its rulings on the issues raised by the petitioner. The CA also held that:

Well-settled is the rule that in reviewing administrative decisions, the findings of fact made therein must be respected as long as they are supported by substantial evidence (Lo vs. Court of Appeals, 321 SCRA 190). We see no cogent reason to depart from said principle. It is also noteworthy that the ground relied upon to justify respondent’s removal, i.e., expiration of his permit to transfer, is purely technical and, therefore, too flimsy to override the constitutional mandate upholding an employee’s right to security of tenure (Art. IX-B, Sec. 2, par. 3, 1987 Constitution). As held in Divinagracia, Jr. vs. Sto. Tomas (244 SCRA 595), “the guarantee of security of tenure is an important object of the civil service system because it affords 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 prejudicial reprisal.”[6]

The petitioner’s motion for reconsideration of the decision was denied by the appellate court.

The petitioner filed his petition for review on certiorari with this Court, contending that the CA erred as follows:

I. IN UPHOLDING THE FINDINGS OF THE CIVIL SERVICE COMMISSION WHICH IMPROPERLY INTERPRETED THE PROVISIONS OF PART II, ITEM 5(a)[4] OF CSC MC NO. 93-38 AND RULING THAT PETITIONER ILLEGALLY TERMINATED RESPONDENT.

II. IN HOLDING THAT PETITIONER WAS

AFFORDED DUE PROCESS. III. IN DECIDING THE CASE IN FAVOR OF

RESPONDENT DESPITE THE EXISTENCE OF OVERWHELMING EVIDENCE TO THE CONTRARY.

IV. IN ORDERING PETITIONER TO PAY THE

COSTS.[7]

The petition has no merit.

The petitioner faults the CSC and the appellate court for ruling in favor of the respondent, contending that, as gleaned from the respondent’s October 2, 1998 Letter, the latter requested for a transfer and was not coerced nor forced to do so. The petitioner asserts that no less than the respondent declared therein, as well as on the other documents on record, that he requested to be transferred to the Office of the Provincial Engineer, and that he secured photo copies of his service records and other documents from the municipality in support of his written request for transfer, and himself submitted such request to the Office of the Governor. The petitioner asserts that the October 28, 1998 Opinion of CSC Regional Office No. 8 and of the Provincial Prosecutor dated November 12, 1998 frontally belie the findings of the CSC and the appellate court. According to the petitioner, he should not be faulted by the CSC for applying the letter and spirit of CSC Memorandum Circular No. 93-38.

The petitioner further alleges that the respondent did not even heave a whimper of protest despite the receipt of the Letter dated September 24, 1998 informing him of his separation. The respondent is thus estopped, the petitioner insists, from assailing the termination of his service as Municipal Engineer of Catarman. The petitioner concedes that factual findings of quasi-judicial bodies, such as the CSC, are conclusive if based on substantial evidence. He, however, contends that, in this case, the CSC ignored and misunderstood the evidence on record, thereby committing a grave injustice.

We do not agree with the petitioner. CSC Memorandum Circular No. 93-38 reads:

Transfer – is a movement from one position without break in service involving the issuance of an appointment. The transfer may be from one agency to another or from one organizational unit to another in the same agency.

An employee who seeks transfer to another office shall first secure permission from the head of the department or agency where he is employed stating the effective date of the transfer. If the request to transfer of an employee is not granted by the head of the agency where he is employed, it shall be deemed approved after the lapse of 30 days from the date of notice to the agency head. If, for whatever reason, the employee fails to transfer on the specified date, he shall be considered resigned and his reemployment in his former office shall be at the discretion of his head.[8]

The CSC interpreted its Memorandum as requiring a written and not merely a verbal request for an employee to transfer to another office. Moreover, such request must be express and unequivocal, and cannot be merely implied or ambiguous. The request by an employee to transfer to another office must be such that he intended to surrender his permanent office. Also, a transfer connotes an absolute

relinquishment of an office in exchange for another office. Such request must be voluntary on the part of the officer concerned and not vitiated by force, coercion, or intimidation or even deceit. Indeed, in Sta. Maria v. Lopez,[9] we held that:

A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to “lure the employee away from his permanent position,” cannot be done without the employee’s consent. For that would constitute removal from office. Indeed, no permanent transfer can take place unless the officer or employee is first removed from the position held, and then appointed to another position.[10]

The Court also held that unconsented transfer is anathema to security of tenure.[11] A transfer that aims by indirect method to terminate services or to force resignation constitutes removal.[12] An employee cannot be transferred unless for causes provided for by law and after due process.[13] Any attempt to breach the protective wall built around the employee’s right to security of tenure should be slain on sight. The right of employees to security of tenure should never be sacrificed merely at the whims and pleasure of some unscrupulous and heartless politicians. As we held in Nemenzo v. Sabillano:[14]

There are altogether too many cases of this nature, wherein local elective officials, upon assumption of office, wield their new-found power indiscriminately by replacing

employees with their own proteges, regardless of the laws and regulations governing the civil service. Victory at the polls should not be taken as authority for the commission of such illegal acts.[15]

In this case, the petitioner, who perceived that the respondent was a well-known supporter of the political party opposed to his candidacy, coerced the respondent into resigning and even threatened to have his position as Municipal Engineer abolished. This was chronicled by the respondent in his letter to the petitioner dated October 2, 1998:

Hon. Francisco C. Rosales, Jr.

Municipal Mayor Catarman, Northern Samar Dear Mayor Rosales: In answer to your letter of 24 September 1998 terminating my services as Municipal Engineer of Catarman, effective September 13, 1998, allegedly due to my failure to seek an extension of my permit to transfer to [the] Provincial Engineering Office, please be reminded of the following facts and events. A few days after you assumed office as new Mayor of Catarman, or on July 2, 1998, you called me to your office and told me to resign from my position as Municipal Engineer

because you did not like me to continue serving under your administration, and if I did not resign, you would abolish my position. You give (sic) me one week to think about your proposal. As a permanent employee, I realized that your proposal was political harassment because I did not support you during the last elections.[16]

The petitioner denied the allegation in his letter to the respondent dated October 15, 1998 that the CSC correctly disbelieved the petitioner’s bare denial. Before the petitioner was elected Mayor of Catarman and assumed office, there was no reason for the respondent to abandon his position as Municipal Engineer and seek a transfer to another office. The respondent’s ordeal commenced after the petitioner assumed office as Municipal Mayor and coerced the respondent into resigning or transferring to another position.

The respondent, in his letter to the petitioner dated October 2, 1998, admitted that during their second meeting on August 10, 1998, he suggested that he was “open” to a transfer to the Provincial Engineering Office or, at least to be detailed thereat, in lieu of resignation, to which the petitioner agreed; and that upon the petitioner’s orders, the respondent accomplished the requisite Form 212, secured copies of his service records, and submitted the same to the Office of the Provincial Governor for a possible appointment as Assistant Provincial Engineer; and that the petitioner endorsed and recommended the same to the Provincial Governor. However, taking into consideration the entirety of the contents of the letter, and the facts and circumstances which impelled the

respondent to write the same, it cannot thereby be concluded that the respondent had voluntarily and unequivocally decided to transfer to the Office of the Provincial Engineer. In light of the demands and threats of the petitioner, the respondent had only three options: to resign, to agree to transfer to another office, or to remain as Municipal Engineer with the threat of the petitioner to have his position abolished hanging over his head.

Admittedly, rather than resign as demanded by the petitioner, the respondent opted to make himself available for appointment by the Provincial Governor as Assistant Provincial Engineer. However, the Form 212 submitted by the respondent to the Provincial Governor is not the written request envisaged in CSC Memorandum Circular No. 93-38 for the following reasons: (a) the respondent continued reporting and performing his duties as Municipal Engineer of Catarman and receiving his salary as such; and (b) the respondent did not send any written request to the petitioner for transfer to the Office of the Provincial Engineer.

Evidently, the respondent intended to request for permission to transfer to the position of Assistant Provincial Engineer only after the Governor had agreed thereto. The respondent did not want to risk unemployment by making a written request for transfer without first being assured of his appointment by the Provincial Governor to the position of Assistant Provincial Engineer; hence, he opted to wait for the Provincial Governor’s approval for his appointment before submitting a written request for transfer to the petitioner. As it were, the Governor failed to act on the respondent’s application.

In his obsession to do away with the respondent even before the Governor could act on his papers, the petitioner wrote the respondent on August 12, 1998, informing the latter that his request for transfer had been granted, knowing fully well that the respondent had not yet made such a written request for transfer. The letter of the petitioner reads:

August 12, 1998

Miguel H. Mijares Municipal Engineer Catarman, Northern Samar Sir: Your request to transfer to the Provincial Engineering Office, Catarman, Northern Samar, is granted for a period of thirty (30) days from receipt hereof, subject to the condition imposed by Civil Service Law, Rules and Regulations. Very truly yours, Sgd. FRANCISCO C. ROSALES, JR.

Municipal Mayor[17]

We agree with the ruling of the CSC that the letter of the petitioner to the respondent is merely a detail of the latter for a period of thirty days to the Office of the Provincial Engineer:

As already stated in the Resolution now being sought to be reconsidered, the purported “permit to transfer” dated August 12, 1998 issued by movant unmistakably refers to a personnel action other than a transfer. The said “permit to transfer” states that “(y)our request to transfer to the Provincial Engineering Office, Catarman, Northern Samar is granted for a period of thirty (30) days from receipt hereof …” This statement does not contemplate a transfer as defined under the Civil Service Law and Rules. Rather, such a personnel action is in reality a detail because Mijares is to be temporarily moved for a period of 30 days from his employer, the Municipal Government of Catarman, to the Provincial Engineering Office.[18]

The deplorable machination resorted to by the petitioner to remove the respondent from his position became more evident when, on September 24, 1998, he wrote the respondent, thus:

September 24, 1998

Engr. Miguel H. Mijares Municipal Engineer Catarman, Northern Samar Engr. Mijares: The 30-day period given to you to transfer to the Provincial Engineering Office has now elapsed and in as much as you did not seek an extension of your permit to transfer, you are considered resigned from this government unit as of September 13, 1998, pursuant to MC No. 38 S 1993 of the Civil Service Commission. FRANCISCO C. ROSALES, JR. Municipal Mayor[19]

By his September 24, 1998 letter to the respondent, the petitioner made it appear that he had granted the respondent permission to transfer within thirty days, and that the respondent failed to effect his transfer. This was done by the petitioner despite the absence of any letter from the respondent requesting for such transfer. By his August 12, 1998 letter, the petitioner merely detailed the respondent to the Office of the Provincial Engineer. It must be stressed that the only legal effect of a detail of an employee, upon the lapse of the period of such detail, is for that employee to return to his permanent station. Thus, the respondent retained his

position as Municipal Engineer despite his detail to the Office of the Provincial Engineer.

The petitioner capped his chicanery by considering the respondent resigned as of September 13, 1998, or after the lapse of the period for detail of the respondent to the Office of the Provincial Engineer.

We agree with the ruling of the appellate court, which affirmed that of the CSC, thus:

… *T+o sustain the

argument advanced by [petitioner] would be setting a dangerous precedent. This will lead to a situation where any head of an agency or local government unit who, for whatever reason, wants to terminate a subordinate from his employment would simply inform the latter that his verbal request to transfer was accepted and, thereafter, exclude his name from the payroll, as what happened in the present case, although the employee never made any such request. This was never the intention of the framers of said rule as it would make a mockery of the

employee’s right to security of tenure. Besides, the alleged request for transfer

was not freely and voluntarily made by respondent, not to mention that petitioner’s approval of the request is ambiguous. Thus, the CSC found:

… the Commission has

noted that the purported grant by Mayor Rosales of permission to Mijares is utterly ambiguous. In his letter dated August 12, 1998, Mayor Rosales stated that ‘(y)our request to transfer to the Provincial Engineering Office, Catarman, Northern Samar, is granted for a period of thirty (30) days from receipt hereof, ….’ This simply means that the supposed transfer of Mijares to the Provincial Office was granted by his stay or service thereat is good only for a period of 30 days.

The foregoing facts and

circumstances duly supported by the evidence on record

convinces the Commission that Mijares did not freely and voluntarily seek from Mayor Rosales permission to transfer to another office. On the contrary, it is apparent that the supposed transfer was a shrewd machination or clever ply (sic) resorted to oust Mijares from his present position. This, the Commission will never tolerate much less countenance, as this would infringe the right to security of tenure of Mijares. Well-settled is the rule that in reviewing

administrative decisions, the findings of fact made therein must be respected as long as they are supported by substantial evidence (Lo vs. Court of Appeals, 321 SCRA 190). We see no cogent reason to depart from said principle.

It is also noteworthy that the ground

relied upon to justify respondent’s removal, i.e., expiration of his permit to transfer, is purely technical and, therefore, too flimsy to override the constitutional mandate upholding an employee’s right to security of tenure (Art. IX-B, Sec. 2, par. 3, 1987 Constitution). As held in Divinagracia, Jr. vs. Sto. Tomas (244 SCRA 595), “the guarantee of security of tenure is an

important object of the civil service system because it affords 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 prejudicial reprisal.”[20]

Likewise, barren of merit is the petitioner’s contention that he was deprived of due process because the CSC failed to consider the effect of the opinion of the Provincial Prosecutor and the Regional Director of the CSC holding that the petitioner had complied with CSC Memorandum Circular No. 93-38, as well as the other documents appended to his comment. The CA correctly ruled that:

Finally, there is no merit in petitioner’s insistence that he was denied due process because the CSC did not consider the documentary evidence attached to his comment. The CSC, in its resolution dated September 21, 1999, stated that “the Commission received *petitioner’s comment+ including all its annexes on May 18, 1999” and “(a)fter a careful evaluation of the same, the Commission found not a shred of evidence to show that [respondent], indeed, requested for his transfer.” (Italics supplied) Settled is the rule that the essence of due process is simply an opportunity to be

heard or, as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be heard; hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side (Audion Electric Co., Inc. vs. NLRC, 308 SCRA 340).[21]

The petitioner cannot find solace in the October 28, 1998 Opinion of Judith Chicano, Regional Director of Region 8 of the CSC, and the November 12, 1998 letter-opinion of the Provincial Prosecutor stating that the petitioner correctly applied CSC Memorandum Circular No. 93-38. This is because: (a) the petitioner falsely represented to the Regional Director and Provincial Prosecutor that the respondent had requested for a transfer to the Office of the Provincial Engineer when, in truth and in fact, the respondent had not done so; (b) the Regional Director and the Provincial Prosecutor were not even furnished with copies of the October 2, 1998 Letter of the respondent to the petitioner; and (c) the opinion of the CSC Regional Director and Provincial Prosecutor were not conclusive on the CSC, as the latter could still reverse the said opinion on appeal.

The records negate the contention of the petitioner that the respondent kept a stoic silence even after receiving the September 24, 1998 letter informing him that he was deemed resigned as of September 13, 1998. The fact of the matter is that the respondent appealed the letter to the

Regional Director of the CSC, Region 8, which the respondent took cognizance of and acted upon via her endorsement of the letter to Ma. Victoria E. Valeriano, Head, Civil Service Fiscal Officer for a fact-finding investigation.[22]

On the contention of the petitioner that the appeal of the respondent to the CSC was made beyond the period therefor under Section 49(a) of the CSC Revised Rules of Procedure, the CSC correctly ruled that:

Movant claims that Mijares’ appeal was filed way beyond the reglementary period for filing appeals. He, thus, contends that the Commission should not have given due course to said appeal.

The Commission need not delve much on

the dates when Mijares was separated from the service and when he assailed his separation. Suffice it to state that the Commission found his appeal meritorious. This being the case, procedural rules need not be strictly observed. This principle was explained by in the case of Mauna vs. CSC, 232 SCRA 388, where the Supreme Court ruled, to wit:

“Assuming for the sake of

argument that the petitioner’s appeal was filed out of time, it is within the power of this Court to temper rigid rules in favor of substantial justice. While it is desirable that the

Rules of Court be faithfully and even meticulously observed, courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. If the rules are intended to ensure the orderly conduct of litigation, it is because of the higher objective they seek which is the protection of substantive rights of the parties. As held by the Court in a number of cases:

‘… Because there is no

vested right in technicalities, in meritorious cases, a liberal, not literal, interpretation of the rules becomes imperative and technicalities should not be resorted to in derogation of the intent and purpose of the rules which is the proper and just determination of litigation. Litigations, should as much as possible, be decided on their merits and not on technicality. Dismissal of appeals purely on technical grounds is frowned upon, and the rules of procedure ought not to be applied in a very rigid, technical sense, for they

are adopted to help secure, not override, substantial justice, and thereby defeat their very aims. As has been the constant rulings of this Court, every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, free from the constraints of technicalities …’”

Besides, Mijares assailed his separation

from the service and asserted his right to his office within one (1) year from his separation. This being so, the Commission correctly gave due course to his appeal (Isberto vs. Raquiza, 67 SCRA 116). And what is ironic is that it is only now that movant raised the issue on timeliness of filing an appeal. Never did he assail this matter in his comment.[23]

The respondent never relented in his resistance to the petitioner’s sustained effort to oust him from his position. The records show that after receipt of the petitioner’s September 24, 1998 letter, the respondent, thereafter, requested for its withdrawal in a reply-letter dated October 2, 1998.[24] In his letter dated October 15, 1998, the petitioner informed the respondent that he was forwarding the latter’s personnel file to the CSC for its legal opinion on

the matter.[25] The petitioner, through counsel, sought the opinion of the CSC Regional Director on October 20, 1998.[26] On October 28, 1998, the CSC Regional Director rendered her opinion in favor of the petitioner. The respondent then wrote to the Regional Director on November 4, 1998, anent the September 24, 1998 letter of the petitioner. The Regional Director treated the said letter of the respondent as an “appeal.” In his comment on the appeal of the respondent, the petitioner did not contest the timeliness of the said “appeal” and opted to delve into and discuss the merits of the case.

It bears stressing that the case before the CSC involves the security of tenure of a public officer sacrosanctly protected by the Constitution. Public interest requires a resolution of the merits of the appeal instead of dismissing the same based on a strained and inordinate application of Section 49(a) of the CSC Revised Rules of Procedure.[27]

On the last issue, we find that there is no factual basis for directing the petitioner to pay the costs.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The decision of the appellate court is AFFIRMED. However, the award for costs is DELETED.

SO ORDERED.

Office of the Ombudsman v. CA (G.R. No. 168670)

CALLEJO, SR., J.:

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

The antecedents are as follows:

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

On August 31, 1998, the Ombudsman forwarded the complaint to the Department of Education, Culture and Sports Regional Office VI (DECS-Region VI) and the Commission on Audit (COA) for appropriate action pursuant to Section 15(2) of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989.iv[4] On September 29, 1998, the DECS-Region VI found that the complaint did not comply with

the formalities under Executive Order No. 292, otherwise known as The Administrative Code of 1987. Thus, it dismissed the complaint, without prejudice to the filing of an appropriate one.

Undaunted, the Faculty Club filed a formal complaint – sworn and subscribed to by the complainants – with DECS-Region VI on February 5, 1999.v[5] However, in a lettervi[6] dated February 12, 1999, the said office dismissed the complaint outright for lack of verification and certification against forum shopping.

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

On April 19, 1999, the DECS-Region VI required

Estandarte to answer the charges in writing.viii[8] Estandarte

filed her answer to the complaint on June 7, 1999.ix[9]

Thereafter, a Special Investigating Committee was created to

hear the case; DECS-Region VI approved the composition of

the Committee in a 1st Indorsement dated July 26, 1999.x[10]

The Committee issued a subpoena duces tecum addressed to

the State Auditor assigned to the case, requiring him to

produce the original copies of certain documents. The State

Auditor, however, replied that he could not comply with the

subpoena because the documents are being used by the

Ombudsman (Visayas) in the criminal and administrative cases

pending before it which concerned the same parties.xi[11]

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

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

Complaint No. 2 - The collections of

miscellaneous fee of Ten Pesos (P10.00) (Annex

II) per student upon enrolment which was not

authorized by DECS.

As explained by the principal in her

letter dated June 8, 1998, this practice had

been going on when she assumed thereat and

the same has the implied permission of the PTA

(Annex III).

Finding:

The imposition of this miscellaneous fee

of Ten Pesos (P10.00) is in violation of DECS

Order No. 27 s. 1995 dated May 24, 1995

(Annex IV).

Complaint 19 & 24

The principal, Miss Heidi M. Estandarte

bought the .38 Caliber Handgun and Shotgun

which she registered under her name, which

should not be done so because the money she

used to purchase said firearm came from the

student government fund.

Finding:

The firearms as alleged by the principal

were intended for the use of the security guard

of the school. However, the arm dealer had

secured the licenses of the firearms in the

name of the principal. These firearms had been

turned-over to the School Supply Officer

(Annex V). Representations had been made for

the transfer of the license to the school, Ramon

Torres National High School (Annex VI-A).

Complaint 21 & 31

She sold, kept and disbursed the income

of the old newspaper with no accounting by the

COA since 1994.

Complaint 23 & 25

The principal Ms. Estandarte accepted

cash and in kind donations without being

properly channeled and accounted first by the

property custodian and the cash without first

[being] deposited in the Trust Fund.

Finding:

Cash donations as acknowledged by Ms.

Heidi Estandarte are as follows:

Source

Amount

Mrs. Ma. Belen J. Elizalde

(not Phil-Am Life) (Annex VI) P

10,000.00

Coca Cola Bottlers (Annex VIII)

100,000.00

Mr. Kojima (Annex IX)

53,400.00

Sales – Old Newspaper (Annex X)

3,949.00

T o t a l

P167,349.00

=========

The donations and the proceeds from the sale

of old newspaper were personally received and

disbursed by Ms. Estandarte. However, these

amounts were not acknowledged through the

issuance of official receipts. Hence the

donations were not taken up in the book of

accounts of the school. Further these amounts

were disbursed personally by the principal Ms.

Heidi Estandarte who acted as the procurement

and disbursing officer at the same time and in

violation of the applicable law which provides

to wit:

Section 63, PD 1445

Accounting for Moneys and Property received by public officials – Except as may otherwise be specifically provided by law or competent authority all moneys and

property officially received by a public office in any capacity or upon any occasion must be accounted for as government funds and government property. Government property should be taken up in the books of the agency concerned at acquisition cost or an appraised value.

Section 68 PD 1445

Issuance of Official Receipt – (1) No

payment of any nature shall be received by a

collecting officer without immediately issuing

an official receipt in acknowledgment thereof.

The receipt may be in the form of postage,

internal revenue or documentary stamps and

the like, or officially numbered receipts, subject

to proper custody, accountability and audit.

Section 112 PD 1445

Recording of financial transactions –

Each government agency shall record its

financial transactions and operation

conformably with generally accepted

accounting principles and in accordance with

pertinent laws and regulations.

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

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

2.) Provincial Auditor Crispin Pinaga, Jr. be

required to submit (his) Affidavit/s or sworn statement/s in order to substantiate his findings. The same is true with respect to the complaints;

3.) Upon receipt of the Affidavits of Provincial

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

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

terminated.xiv[14]

The Ombudsman (Visayas) decided to refer the administrative aspect of the case (OMB-VIS-ADM-99-0941, entitled “COA Region 6, Office of the Provincial Auditor v. Heidi Estandarte”) to the DECS-Region VI for administrative adjudication pursuant to Section 23(2) of Rep. Act No. 6770. The complete records of the case were forwarded to the DECS-Region VI in a letter dated November 29, 1999.xv[15]

It appeared, however, that the DECS-Region VI did not receive this referral because on December 7, 1999, it inquired on the status of RAS-VIS-98-1030 from the Ombudsman (Visayas).xvi[16] On March 9, 2000, the Ombudsman (Visayas) inquired about the progress of the case from the DECS-Region VI,xvii[17] and when it did not receive an answer, it sent another letter-inquiry on September 21, 2000.xviii[18] Finally, on November 22, 2000, the Ombudsman (Visayas) received a letter from the DECS-Region VI informing it that the latter did not receive any referral concerning the case.xix[19] Hence, the Ombudsman (Visayas) again forwarded the records of the case to the DECS-Region VI, which received them on December 26, 2000.xx[20]

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

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

In a letterxxiii[23] dated April 29, 2002, the Faculty Club requested the Ombudsman (Visayas) to take over the case for speedier disposition. Ms. Lucia Jane Grecia, a member of the Faculty Club, also wrote a letter to the Ombudsman (Visayas) complaining that she was being oppressed by Estandarte. She likewise requested the Ombudsman (Visayas)

to take over the case. Consequently, on July 5, 2002, the Ombudsman (Visayas) informed the DECS-Region VI that it would not object if the case is returned to it.xxiv[24]

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

On November 6, 2002, the Ombudsman (Visayas) set

the case for preliminary conference.xxvi[26] In the meantime,

Estandarte filed an Urgent Motion to Remandxxvii[27] the case

to the DECS-Region VI on the ground that jurisdiction is

now exclusively vested on the latter. On December 17, 2002,

the Ombudsman (Visayas) denied the motion ratiocinating

that it was not barred from assuming jurisdiction over the

complaint after the DECS-Region VI had relinquished its

jurisdiction over the same.xxviii[28] Estandarte filed a motion for

reconsideration of said Order, which was later denied by the

Ombudsman (Visayas).xxix[29]

The preliminary conference was set on May 21, 2003.

On the said date, only the counsel of COA was present. The

Ombudsman (Visayas), therefore, issued an Order stating that

in view of Estandarte’s failure to attend the scheduled

hearing, she is deemed to have waived her right to a formal

investigation unless she is able to justify her absence. In an

Urgent Motion for Postponement,xxx[30] Estandarte’s counsel

explained that he was due to attend a hearing in another

court on the scheduled day of the hearing. He manifested that

they intended to challenge the Ombudsman’s order denying

the motion to remand the case to the DECS-Region VI through

a petition for certiorari. In its Orderxxxi[31] dated July 24, 2003,

the Ombudsman reset the preliminary conference to July 30,

2003.

On July 21, 2003, Estandarte filed a Motion to Suspend

Proceedings on the ground that she filed a petition for review

on certiorari with the CA assailing the order denying her

motion to remand the case to the DECS-Region VI. The

Ombudsman denied the motion.xxxii[32]

On July 29, 2003 Estandarte filed an Urgent Motion for

Postponementxxxiii[33] of the hearing scheduled the following

day, and a Motion for Reconsideration with Motion for

Voluntary Inhibition, assailing the denial of her motion to

suspend the proceedings. However, due to her failure to

furnish the complainants with a copy of the motion to

postpone, the Ombudsman (Visayas) proceeded with the

preliminary conference with only the complainants present.

Thereafter, the case was submitted for resolution.xxxiv[34]

In a Decision dated March 9, 2004, the Ombudsman

(Visayas) found Estandarte guilty of grave misconduct, thus:

WHEREFORE, premises considered, respondent Heidi Estandarte, Principal, Ramon Torres National High School, Bago City, Negros Occidental, is hereby found guilty of Grave Misconduct, and is meted the penalty of Dismissal from Service, with perpetual disqualification to hold public office and forfeiture of all benefits and cancellation of Civil Service eligibilities.xxxv[35]

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

Estandarte filed a petition for review with prayer for the

issuance of a temporary restraining order/writ of preliminary

injunction with the CA. She alleged that the Ombudsman

(Visayas) violated her right to due process when her request

for a formal investigation was denied; that the DECS-Region

VI has jurisdiction over the case; and that the Ombudsman

(Visayas) failed to act with the cold neutrality of an impartial

judge.xxxvii[37]

On September 10, 2004, the CA ordered the issuance

of a TRO.xxxviii[38] It later granted Estandarte’s application for a

writ of preliminary injunction in a Resolutionxxxix[39] dated

November 10, 2004.

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

WHEREFORE, in view of all the

foregoing premises, judgment is hereby

rendered by us GRANTING the petition filed in

the case at bench, SETTING ASIDE the decision

rendered by the Office of the Ombudsman

(Visayas) on March 9, 2004 in OMB-V-A-02-

0572-J and the order issued by it in the same

case on June 3, 2004 and ORDERING the Office

of the Ombudsman (Visayas) to remand the

record of OMB-VIS-ADM-99-0941 to the

Special Investigating Committee of DECS-

Region VI created on July 26, 1999 for the said

committee to conduct further proceedings

therein with utmost dispatch and eventually to

submit its findings and recommendations to the

Director of Public Schools for the proper

disposition thereof.

IT IS SO ORDERED.xl[40]

The CA held that the Ombudsman (Visayas) acted without or in excess of jurisdiction when it took over the case after it issued a memorandum considering the case closed and terminated and after jurisdiction had already been vested in the Special Investigating Committee. Such act violates the doctrine of primary jurisdiction. Once jurisdiction is acquired by or attached to a proper investigative body or agency, such jurisdiction continues until the termination of the case. Citing Fabella v. Court of Appealsxli[41] and Emin v. de Leon,xlii[42] the CA held that Rep. Act No. 4670 specifically covers and governs administrative proceedings involving public school teachers,

and jurisdiction over such cases is originally and exclusively lodged with the Investigating Committee created pursuant to Section 9 of Rep. Act No. 4670. xliii[43]

The appellate court further held that, assuming the Ombudsman (Visayas) has jurisdiction, the assailed decision and order would have to be set aside because Estandarte was denied her right to substantive and procedural due process. It pointed out that she was denied the right to a formal investigation and the opportunity to be heard. Following the Court’s ruling in Tapiador v. Office of the Ombudsman,xliv[44] the CA held that the Ombudsman (Visayas) has no authority to directly impose the penalty of dismissal on those who are the subject of its investigation because its power is merely recommendatory.xlv[45]

The Ombudsman, now petitioner, submits the following issues:

I. THE OFFICE OF THE OMBUDSMAN HAS FULL ADMINISTRATIVE DISCIPLINARY JURISDICTION OVER PUBLIC OFFICIALS AND EMPLOYEES UNDER ITS AUTHORITY, INCLUDING THE LESSER POWER TO ENFORCE THE SANCTIONS MPOSED ON ERRING FUNCTIONARIES, PUBLIC SCHOOL TEACHERS INCLUDED.

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

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

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

IV. CONTRARY TO THE FINDINGS OF THE APPELLATE COURT, PRIVATE RESPONDENT ESTANDARTE WAS NOT DENIED SUBSTANTIVE

AND PROCEDURAL DUE [PROCESS], AND NEITHER WAS THE ADMINISTRATIVE PROCEEDING AGAINST HER TAINTED WITH ANY IRREGULARITY, AS IN FACT THE OMBUDSMAN AFFORDED HER DUE PROCESS.

V. SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE FINDINGS OF GUILT OF PRIVATE RESPONDENT ESTANDARTE WHICH WARRANTS THE IMPOSITION ON HER OF THE ADMINISTRATIVE PENALTY OF DISMISSAL FROM THE SERVICE.xlvi[46]

Petitioner contends that the CA erred in holding that it is bereft of the authority to directly impose on the respondent the sanction of dismissal from service. It stresses that it has full and complete administrative disciplinary jurisdiction over public school teachers. It points out that Ledesma v. Court of Appealsxlvii[47] already declared that the ruling in the Tapiador case, that the Ombudsman has no authority to directly dismiss an employee from government service, is merely an obiter dictum. Therefore, it has the authority to determine the administrative liability of a public official or employee, and direct and compel the head of office and agency concerned to implement the penalty imposed.xlviii[48]

Petitioner submits that it has concurrent disciplinary jurisdiction with the DECS over the administrative case against the respondent. Jurisdiction over the said case is not exclusive to the DECS, as the respondent is a public official and the

offense charged pertains to the performance of her official functions. Consequently, there is no bar for it to take cognizance of the case after the DECS referred it for administrative adjudication.xlix[49]

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

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

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

Respondent, for her part, argues that petitioner cannot divest the DECS of its jurisdiction over the administrative case because “once jurisdiction attaches, it continues until the termination of the case.” She posits that when the DECS

assumed jurisdiction over the case, the petitioner was effectively precluded from assuming the same jurisdiction.liii[53]

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

The petition has no merit.

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

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

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

All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire

gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose the said penalty.lv[55]

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

Section 9. Administrative Charges. — Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teacher’s organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That, where the school

superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.

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

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

Undoubtedly, the DECS-Region VI first assumed jurisdiction over the administrative complaint against the respondent. It should be recalled that when People’s Graftwatch forwarded

the complaint to the Ombudsman (Visayas), the latter treated it as a request for assistance and referred it to the DECS-Region VI and COA for appropriate action. After it had resolved to upgrade the matter to an administrative case, the Ombudsman decided not to take cognizance of the same and refer it, instead, to the DECS-Region VI pursuant to Section 23(2) of R.A. 6770 which provides:

Section 23. Formal Investigation.— x x x x (2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be terminated within the period prescribed in the civil service law. Any delay without just cause in acting on any referral made by the Office of the Ombudsman shall be a ground for administrative action against the officers or employees to whom such referrals are addressed and shall constitute a graft offense punishable by a fine of not exceeding five thousand (P5,000.00). (Emphasis supplied.)

We do not agree with petitioner’s contention that it could assume jurisdiction over the administrative case after the DECS-Region VI had voluntarily relinquished its jurisdiction over the same in favor of the petitioner. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the

instance of the parties but continues until the case is terminated.lix[59] When the complainants filed their formal complaint with the DECS-Region VI, jurisdiction was vested on the latter. It cannot now be transferred to petitioner upon the instance of the complainants, even with the acquiescence of the DECS and petitioner.

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

In any event, since We are not dealing with jurisdiction but mainly with venue, considering both court concerned do have jurisdiction over the cause of action of the parties herein against each other, the better rule in the event of conflict between two courts of concurrent jurisdiction as in the present case, is to allow the litigation to be tried and decided by the court which, under the circumstances obtaining in the controversy, would, in the mind of this Court, be in a better position to serve the interests of justice, considering the nature of the controversy, the comparative accessibility of the court to the parties, having in view their peculiar positions and capabilities, and other similar factors. x x x xlx[60]

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

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

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

if favorable, but attacking it for lack of jurisdiction, when adverse.lxiii[63]

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

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

SO ORDERED.

G.R. No. 131136 February 28, 2001

CONRADO L. DE RAMA, petitioner, vs. THE COURT OF APPEALS (NINTH DIVISION, THE CIVIL SERVICE COMMISSION), ELADIO MARTINEZ, DIVINO DE JESUS, MORELL AYALA, ARISTEO CATALLA, DAISY PORTA,

FLORDELIZA ORIASEL, GRACIELA GLORY, FELECIDAD ORINDA Y, MA. PETRA MUFFET LUCE, ELSA MARINO, BERNARDITA MENDOZA, JANE MACATANGA y ADELFO GLODOVIZA and FLORENIO RAMOS, respondents.

YNARES-SANTIAGO, J.:

Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Raffia wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the appointments of fourteen (14) municipal employees, namely:

NAME POSITION DATE OF APPOINTMENT

Eladio Martinez Registration Office I June 1, 1995

Divino de Jesus Bookbinder III June 1, 1995

Morell Ayala Accounting Clerk III June 16, 1995

Daisy Porta Clerk IV June 27, 1995

Aristeo Catalla Gen. Services Officer June 19, 1995

Elsa Marino Mun. Agriculturist June 19, 1995

Graciela Glory Bookkeeper II June 27, 1995

Ma. Petra Muffet Lucce

Accounting Clerk III June 27, 1995

Felicidad Orinday Accounting Clerk II June 27, 1995

Bernardita Mendoza

Agricultural Technologist

June 27, 1995

Flordeliza Oriasel Clerk I June 27, 1995

Jane Macatangay Day Care Worker I June 27, 1995

Adolfo Glodoviza Utility Worker II June 27, 1995

Florenio Ramos Utility Foreman June 27, 1995

Petitioner de Raffia justified his recall request on the allegation that, the appointments of the said employees were "midnight" appointments of the former mayor, Ma. Evelyn S. Abeja, done in violation of Article VII, Section 15 of the 1987 Constitution, which provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Underscoring supplied)

While the matter was pending before the CSC, three of the above-named employees, namely: Elsa Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their salaries, alleging that although their appointments were declared permanent by Conrado Gulim, Director II of the

CSC Field Office based in Quezon, petitioner de Rama withheld the payment of their salaries and benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995, wherein the appointments of the said fourteen (14) employees were recalled.

Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial Division of the CSC issued an Order2 finding that since the claimants-employees had assumed their respective positions and performed their duties pursuant to their appointments, they are therefore entitled to receive the salaries and benefits appurtenant to their positions. Citing Rule V, Section 10 of the Omnibus Rules3 which provides, in part, that "if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission," the CSC Legal and Quasi-Judicial Division ruled that the said employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-assumed mayor.

On April 30, 1996, the CSC denied petitioner's request for the recall of the appointments of the fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus Rules, and declared that the appointments of the said employees were issued in accordance with pertinent laws. Thus, the same were effective immediately, and cannot be withdrawn or revoked by the appointing authority until disapproved by the CSC. The CSC also dismissed petitioner's allegation that these were "midnight" appointments, pointing out that the Constitutional provision relied upon by petitioner prohibits only those appointments made by an outgoing

President and cannot be made to apply to local elective officials. Thus, the CSC opined, "the appointing authority can validly issue appointments until his term has expired, as long as the appointee meets the qualification standards for the position."4

The CSC upheld the validity of the appointments on the ground that they had already been approved by' the Head of the CSC Field Office in Lucena City, and for petitioner's failure to present evidence that would warrant the revocation or recall of the said appointments.

Petitioner moved for the reconsideration of the CSC's Resolution, as well as the Order of the CSC Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to refuse to revoke the subject appointments; and (2) to uphold the validity of said appointments, even assuming that there was failure to present evidence that would prove that these appointments contravened existing laws or rules. He also posited that the CSC erred in finding the appointments valid despite the existence of circumstances showing that the same were fraudulently issued and processed.

On November 21, 1996, the CSC denied petitioner's motion for reconsideration. The CSC reiterated its ruling that:

In the absence of any showing that these alleged midnight appointments were defective in form and in substance, nor is there evidence presented to show that subject appointments were issued in

contravention of law or rules, these appointments are deemed valid and in effect.

xxx xxx xxx

Mayor de Rama failed to present evidence that subject appointments should be revoked or recalled because of any of the abovementioned grounds enumerated. As a matter of fact said appointments were even approved by the Head, Civil Service Field Office, Lucena City when submitted for attestation. In the absence of a clear showing that these appointments were issued in violation of any of these grounds, the Commission has no other recourse but to uphold their validity. (Underscoring supplied).

The CSC also 'cited the Supreme Court ruling in the case of Aquino v. Civil Service Commission5 wherein this Court held that:

It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal not merely equitable right (to the position), which is protected not only by statute, but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. (Emphasis supplied)

Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that the CSC arrived at the

erroneous conclusion after it ignored his "supplement to the consolidated appeal and motion for reconsideration" wherein he laid out evidence showing that the subject appointments were obtained through fraud.

After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a Resolution6 dated May 16, 1997 which held that there was no abuse of the power of appointment on the part of the outgoing mayor.

The Court of Appeals further held that the fact that the appointments of Marino, Ayala, Ramos, Mendoza and Glory were made more than four (4) months after the publication of the vacancies to which they were appointed is of no moment. Setting aside petitioner's suppositions, the Court of Appeals ruled that Republic Act No. 7041 does not provide that every appointment to the local government service must be made within four (4) months from publication of the vacancies. It cited Section 80 of said Act, to wit:

Section 80. Public Notice of Vacancy: Personnel Selection Board.

(a) Whenever a local chief executive decides to fill a vacant career position, there shall be posted notices of the vacancy in at least three (3) conspicuous public places in the local government unit concerned for a period of not less than fifteen (15) days.

(b) There shall be established in every province, city or municipality a personnel selection board to assist the local chief executive in the judicious and objective

selection of personnel for employment as well as for promotion, and in the formulation of such policies as would contribute to employee welfare.

(c) The personnel selection board shall be headed by the local sanggunian concerned. A representative of the Civil Service Commission, if any, and the personnel officer of the local government unit concerned shall be ex officio members of the board.7

Likewise, neither did the CSC's own Circular Order No. 27, Section 7, Series of 1991, require that vacant positions published in a government quarterly must be filled up before the advent of the succeeding quarter.

On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the petition for review.

Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding the CSC's resolutions despite the following defects:

I. No screening process and no criteria were adopted by the Personnel Selection Board in nominating the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the law;

III. Merit and fitness requirements were not observed by the selection board and by the appointing authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents.8

In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for reconsideration.

Hence, the instant petition for review on certiorari on the following assigned errors:

I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON ISSUANCE OF APPOINTMENTS.

II. THE-PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE PARTICULAR GROUNDS NAMELY:

I. No screening process and no criteria were adopted by the Personnel Selection Board in nominating the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the law;

III. Merit and fitness requirements were not observed by the selection board and by the

appointing authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents.

ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS BY THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND REGULATIONS ON ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE RESPONDENT CIVIL SERVICE COMMISSION.

Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to law and not being supported by the evidence on record.

This argument is too specious to be given credence. The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were "midnight appointments" that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who made the appointments. Neither did he allege that the said appointments were tainted by irregularities or anomalies that breached laws and regulations governing appointments. His solitary reason for

recalling these appointments was that they were, to his personal belief, "midnight appointments" which the outgoing mayor had no authority to make.

Even in petitioner's consolidated appeal and motion for reconsideration, he did not make any assertion that these appointments were violative of civil service rules and procedures. Indeed, he harped on the CSC's alleged lack of jurisdiction to refuse to recall the subject appointments. After first invoking the authority of the CSC to approve or affirm his act, he then contradicted himself by arguing that the CSC had no jurisdiction to do so, but only after the CSC had ruled that the recall was without legal basis. He emphasized that he alone has sole discretion to appoint and recall the appointment of municipal employees, an authority which, he stressed, the CSC cannot usurp. Yet, nowhere in said pleading did he cite any other ground, much less present proof that would warrant the recall of said appointments.

Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a supplement to the appeal and motion for reconsideration where, for the very first time, he alleged that the appointments were fraught with irregularities for failing to comply with CSC rules and regulations. Nevertheless, the CSC overruled petitioner's assertions, holding that no new evidence had been presented to warrant a reversal of its earlier resolution.

Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSC's conclusion because it had ignored the allegations and documents he presented in the supplement to his earlier consolidated appeal and motion for

reconsideration. He argued that these form part of the records of the case and that the CSC erred in failing to consider the assertions he raised therein. The appellate court, however, agreed with the CSC when it ruled that the documents presented by petitioner in the supplemental pleading did not constitute "new evidence" that would convince the CSC to reverse its earlier ruling. In fine, the Court of Appeals, as did the CSC, simply dismissed petitioner's allegations and documents attached to the supplemental pleading for they did not constitute new evidence that a court, board or tribunal may entertain.

Herein lies the inconsistency of petitioner's arguments. He faults the Court of Appeals and the CSC for ignoring his supplemental pleading, while at the same time arguing that the grounds for recall such as violations of laws and regulations on issuance of appointments are not new issues because he had timely raised them before the CSC.

There is no question that parties may file supplemental pleadings to supply deficiencies in aid of an original pleading, but which should not entirely substitute the latter.9 The propriety and substance of supplemental pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of Civil Procedure, which provides:

Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The

adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.

Supplemental pleadings must be with reasonable notice, and it is discretionary upon the court or tribunal to allow the same or not. Thus, the CSC was under no obligation to admit the supplemental pleading, or even to consider the averments therein.

Secondly, a supplemental pleading must state transactions, occurrences or events which took place since the time the pleading sought to be supplemented was filed. In the instant case, petitioner alleged fraud and irregularities that supposedly occurred contemporaneous to the execution of the appointments. They should have been raised at the very first opportunity. They are not new events which petitioner could not have originally included as grounds for the recall of the appointments.

Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his supplemental pleading did not constitute "new evidence" that can be the proper subject of a supplemental pleading. These were old facts and issues which he failed to raise earlier. Consequently, the CSC and the Court of Appeals did not err in refusing to give credence to the supplemental pleading.

Be that as it may, these alleged irregularities were considered by the CSC and the Court of Appeals as new issues which were raised for the first time on appeal. It is rather too late for petitioner to raise these issues for the first time on appeal. It

is well-settled that issues or questions of fact cannot be raised for the first time on appeal.10 We have consistently held that matters, theories or arguments not brought out in the original proceedings cannot be considered on review or appeal where they are raised for the first time.11 To consider the alleged facts and arguments raised belatedly in the supplemental pleading to the appeal at this very late stage in the proceedings would amount to trampling on the basic principles of fair play, justice and due process.12

The grounds for the recall of the appointments that petitioner raised in his supplemental pleading to the consolidated appeal and motion for reconsideration are that: (1) the rules on screening of applicants based on adopted criteria were not followed; (2) there was no proper posting of notice of vacancy; and (3) the merit and fitness requirements set by the civil service rules were not observed. These are grounds that he could have stated in his order of recall, but which he did not. Neither did he raise said grounds in his original appeal, but only by way of a supplemental pleading. Failure of the petitioner to raise said grounds and to present supporting documents constitute a waiver thereof, and the same arguments and evidence can no longer be entertained on appeal before the CSC, nor in the Court of Appeals, and much less in a petition for review before the Supreme Court.13 In fine, the raising of these factual issues for the first time in a pleading which is supplemental only to an appeal is barred by estoppel.14

Petitioner asks this Court to appreciate and consider these factual issues. It must be recalled that the jurisdiction of the Supreme Court in a petition for review on certiorari under

Rule 45 of the Revised Rules of Court is limited to reviewing only errors of law, not of fact.15 That is, of course, unless the factual findings assailed by petitioner are devoid of support by the evidence on record or the impugned judgment is based on a misapprehension of facts.16

A thorough perusal of the records reveal that the CSC's ruling is supported by the evidence and the law. The fourteen (14) employees were duly appointed following two meetings of the Personnel Selection Board held on May 31 and June 26, 1995. There is no showing that any of the private respondents were not qualified for the positions they were appointed to. Moreover, their appointments were duly attested to by the Head of the CSC field office at Lucena City. By virtue thereof, they had already assumed their appointive positions even before petitioner himself assumed his elected position as town mayor. Consequently, their appointments took effect immediately and cannot be unilaterally revoked or recalled by petitioner.

It has been held that upon the issuance of an appointment and the appointee's assumption of the position in the civil service, "he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing."17 Moreover, it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing.18

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements or due process of law. In doing so, he overstepped the bounds of his authority. While he argues that the appointing power has the sole authority to revoke said appointments, there is no debate that he does not have blanket authority to do so. Neither can he question the CSC's jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that "an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission." Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations.19

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain

effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds:

(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;

(b) Failure to pass through the agency's Selection/Promotion Board;

(c) Violation of the existing collective agreement between management and employees relative to promotion; or

(d) Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were "midnight appointments." The CSC correctly ruled, however, that the constitutional prohibition on so-called "midnight appointments," specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President.

If ever there were other procedural or legal requirements that were violated in implementing the appointments of the private respondents, the same were not seasonably brought before the Civil Service Commission. These cannot be raised for the first time on appeal.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and the Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions Nos. 96-2828 and 96-7525 hereby AFFIRMED in toto.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

G.R. No. 137473 August 2, 2001

ESTELITO V. REMOLONA, petitioner, vs. CIVIL SERVICE COMMISSION, respondent.

PUNO, J.:

The present petition seeks to review and set aside the Decision rendered by the Court of Appeals dated July 31, 19981 upholding the decision of the Civil Service Commission which ordered the dismissal of petitioner Estelito V. Remolona (Remolona) from the government service for dishonesty, and

the Resolution dated February 5, 19992 denying petitioner's motion for reconsideration.

Records show that petitioner Estelito V. Remolona is the Postmaster at the Postal Office Service in Infanta, Quezon, while his wife Nery Remolona is a teacher at the Kiborosa Elementary School.

In a letter3 dated January 3, 1991, Francisco R. America, District Supervisor of the Department of Education, Culture & Sports at Infanta, Quezon, inquired from the Civil Service Commission (CSC) as to the status of the civil service eligibility of Mrs. Remolona who purportedly got a rating of 81.25% as per Report of Rating issued by the National Board for Teachers.4 Mr. America likewise disclosed that he received information that Mrs. Remolona was campaigning for a fee of P8,000.00 per examinee for a passing mark in the teacher's board examinations. --

On February 11, 1991, then CSC Chairman Patricia A. Sto. Tomas issued an Order directing CSC Region IV Director Bella Amilhasan to conduct an investigation on Mrs. Remolona's eligibility, after verification from the Register of Eligibles in the Office for Central Personnel Records revealed "that Remolona's name is not in the list of passing and failing examinees, and that the list of examinees for December 10, 1989 does not include the name of Remolona. Furthermore, Examination No. 061285 as indicated in her report of rating belongs to a certain Marlou C. Madelo, who took the examination in Cagayan de Oro and got a rating of 65.00%."5

During the preliminary investigation conducted by Jaime G. Pasion, Director II, Civil Service Field Office, Lucena City, Quezon, only petitioner Remolona appeared. He signed a written statement of facts6 regarding the issuance of the questioned Report of Rating of Mrs. Remolona, which is summarized in the Memorandum7 submitted by Director Pasion as follows:

"3.1 That sometime in the first week of September, 1990, while riding in a Kapalaran Transit Bus from Sta. Cruz, Laguna on his way to San Pablo City, he met one Atty. Hadji Salupadin (this is how it sounded) who happened to be sitting beside him;

3.2 That a conversation broke out between them until he was able to confide his problem to Atty. Salupadin about his wife having difficulty in acquiring an eligibility;

3.3 That Atty. Salupadin who represented himself as working at the Batasan, offered his help for a fee of P3,000.00;

3.4 That the following day they met at the Batasan where he gave the amount of P2,000.00, requirements, application form and picture of his wife;

3.5 That the following week, Thursday, at around 1:00 P.M., they met again at the Batasan where he handed to Atty. Salupadin the amount of P1,000.00 plus P500.00 bonus who in turn handed to him the Report

of Rating of one Nery C. Remolona with a passing grade, then they parted;

3.6 That sometime in the last week of September, he showed the Report of Rating to the District Supervisor, Francisco America who informed her (sic) that there was no vacancy;

3.7 That he went to Lucena City and complained to Dr. Magsino in writing . . . that Mr. America is asking for money in exchange for the appointment of his wife but failed to make good his promise. He attached the corroborating affidavits of Mesdames Carmelinda Pradillada and Rosemarie P. Romantico and Nery C. Remolona x x x;

3.8 That from 1986 to 1988, Mr. America was able to get six (6) checks at P2,600.00 each plus bonus of Nery C. Remolona;

3.9 That Mr. America got mad at them. And when he felt that Mr. America would verify the authenticity of his wife's Report of Rating, he burned the original."

Furthermore, Remolona admitted that he was responsible in acquiring the alleged fake eligibility, that his wife has no knowledge thereof, and that he did it because he wanted them to be together. Based on the foregoing, Director Pasion recommended the filing of the appropriate administrative action against Remolona but absolved Mrs. Nery Remolona from any liability since it has not been shown that she willfully participated in the commission of the offense.

Consequently, a Formal Charge dated April 6, 1993 was filed against petitioner Remolona, Nery C. Remolona, and Atty. Hadji Salupadin for possession of fake eligibility, falsification and dishonesty.8 A formal hearing ensued wherein the parties presented their respective evidence. Thereafter, CSC Regional Director Bella A. Amilhasan issued a Memorandum dated February 14, 19959 recommending that the spouses Estelito and Nery Remolona be found guilty as charged and be meted the corresponding penalty.

Said recommendation was adopted by the CSG which issued Resolution No. 95-2908 on April 20, 1995, finding the spouses Estelito and Nery Remolona guilty of dishonesty and imposing the penalty of dismissal and all its accessory penalties. The case against Atty. Hadji Salupadin was held in abeyance pending proof of his identity.10 In its Resolution No. 96551011 dated August 27, 1996, the CSC, acting on the motion for reconsideration filed by the spouses Remolona, absolved Nery Remolona from liability and held that:

"Further, a review of the records and of the arguments presented fails to persuade this Commission to reconsider its earlier resolution insofar as Estelito Remolona's culpability is concerned. The evidence is substantial enough to effect his conviction. His act of securing a fake eligibility for his wife is proved by substantial evidence. However, in the case of Nery Remolona, the Commission finds her innocent of the offense charged, for there is no evidence to show that she has used the fake eligibility to support an appointment or promotion. In fact, Nery Remolona did not indicate in her Personal Data Sheet that she

possesses any eligibility. It must be pointed out that it was her husband who unilaterally worked to secure a fake eligibility for her.

WHEREFORE, the instant Motion for Reconsideration is hereby denied insofar as respondent Estelito Remolona is concerned. However, Resolution No. 95-2908 is modified in the sense that respondent Nery Remolona is exonerated of the charges. Accordingly, Nery Remolona is automatically reinstated to her former position as Teacher with back salaries and other benefits."

On appeal, the Court of Appeals rendered its questioned decision dismissing the petition for review filed by herein petitioner Remolona. His motion for reconsideration and/or new trial was likewise denied. Hence, this petition for review.

Petitioner submits that the Court of Appeals erred:

"1. in denying petitioner's motion for new trial;

2. in holding that petitioner is liable for dishonesty; and

3. in sustaining the dismissal of the petitioner for an offense not work connected in relation to his official position in the government service."

The main issue posed for resolution is whether a civil service employee can be dismissed from the government service for an offense which is not work-related or which is not connected with the performance of his official duty. Remolona

likewise imputes a violation of his right to due process during the preliminary investigation because he was not assisted by counsel. He claims that the extra-judicial admission allegedly signed by him is inadmissible because he was merely made to sign a blank form. He also avers that his motion for new trial should be granted on the ground that the transcript of stenographic notes taken during the hearing of the case before the Regional Office of the CSC was not forwarded to the Court of Appeals. Finally, he pleads that the penalty of dismissal with forfeiture of all benefits is too harsh considering the nature of the offense for which he was convicted, the length of his service in government, that this is his first offense, and the fact that no damage was caused to the government.

The submission of Remolona that his alleged extra-judicial confession is inadmissible because he was not assisted by counsel during the investigation as required under Section 12 paragraphs 1 and 3, Article III of the 1987 Constitution deserves scant consideration.

The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who had been taken into custody by the police to carry out a process of interrogation that lends itself to elicit incriminating statements. It is when questions are initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The right to counsel attaches only upon the

start of such investigation. Therefore, the exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation.12

While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel. In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. This is clear from the provisions of Section 32, Article VII of Republic Act No. 2260 (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987). Thus, the right to counsel is not always imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measure against erring public officers and employees, with the purpose of maintaining the dignity of government service. As such, the hearing conducted by the investigating authority is not part of a criminal prosecution.13

In the case at bar, Remolona was not accused of any crime in the investigation conducted by the CSC field office. The investigation was conducted for the purpose of ascertaining the facts and whether there is a prima facie evidence sufficient to form a belief that an offense cognizable by the

CSC has been committed and that Remolona is probably guilty thereof and should be administratively charged. Perforce, the admissions made by Remolona during such investigation may be used as evidence to justify his dismissal.

The contention of Remolona that he never executed an extra-judicial admission and that he merely signed a blank form cannot be given credence. Remolona occupies a high position in government as Postmaster at Infanta, Quezon and, as such, he is expected to be circumspect in his actions specially where he is being administratively charged with a grave offense which carries the penalty of dismissal from service.

Remolona insists that his dismissal is a violation of his right to due process under Section 2(3), Article XI (B) of the Constitution which provides that "no officer or employee in the Civil Service shall be removed or suspended except for cause." Although the offense of dishonesty is punishable under the Civil Service law, Remolona opines that such act must have been committed in the performance of his function and duty as Postmaster. Considering that the charge of dishonesty involves the falsification of the certificate of rating of his wife Nery Remolona, the same has no bearing on his office and hence, he is deemed not to have been dismissed for cause. This proposition is untenable.

It cannot be denied that dishonesty is considered a grave offense punishable by dismissal for the first offense under Section 23, Rule XIV of the Rules Implementing Book V of Executive Order No. 292. And the rule is that dishonesty, in order to warrant dismissal, need not be committed in the course of the performance of duty by the person charged. The

rationale for the rule is that if a government officer or employee is dishonest or is guilty of oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his right to continue in office. The Government cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations. The private life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service.14

The principle is that when an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public's faith and confidence in the government.15

The general rule is that where the findings of the administrative body are amply supported by substantial evidence, such findings are accorded not only respect but also finality, and are binding on this Court.16 It is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its own judgment for that of the administrative agency on the

sufficiency of evidence.17 Thus, when confronted with conflicting versions of factual matters, it is for the administrative agency concerned in the exercise of discretion to determine which party deserves credence on the basis of the evidence received.18 The rule, therefore, is that courts of justice will not generally interfere with purely administrative matters which are addressed to the sound discretion of government agencies unless there is a clear showing that the latter acted arbitrarily or with grave abuse of discretion or when they have acted in a capricious and whimsical manner such that their action may amount to an excess of jurisdiction.19

We have carefully scrutinized the records of the case below and we find no compelling reason to deviate from the findings of the CSC and the Court of Appeals. The written admission of Remolona is replete with details that could have been known only to him. No ill-motive or bad faith was ever imputed to Director Pasion who conducted the investigation. The presumption that official duty has been regularly performed remains unrebutted.

The transmittal of the transcript of stenographic notes taken during the formal hearing before the CSC is entirely a matter of discretion on the part of the Court of Appeals. Revised Administrative Circular No. 1-95 of this Court clearly states that in resolving appeals from quasi-judicial agencies, it is within the discretion of the Court of Appeals to have the original records of the proceedings under review transmitted to it.20 Verily, the Court of Appeals decided the merits of the case on the bases of the uncontroverted facts and admissions contained in the pleadings filed by the parties.

We likewise find no merit in the contention of Remolona that the penalty of dismissal is too harsh considering that there was no damage caused to the government since the certificate of rating was never used to get an appointment for his wife, Nery Remolona. Although no pecuniary damage was incurred by the government, there was still falsification of an official document that constitutes gross dishonesty which cannot be countenanced, considering that he was an accountable officer and occupied a sensitive position.21 The Code of Conduct and Ethical Standards for Public Officials and Employees enunciates the State policy of promoting a high standard of ethics and utmost responsibility in the public service.22

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto.

SO ORDERED.

Bellosillo, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ ., concur. Davide, Jr., C .J ., Melo, Panganiban, Buena, JJ ., on official leave. Sandoval-Gutierrez, J ., is on leave.