G.R. No. 152457

EN BANC

RODOLFO R. MAHINAY, G.R. No. 152457

Petitioner,

Present:

PUNO, C.J.,

QUISUMBING,

- versus - YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,*

CARPIO MORALES,

COURT OF APPEALS, CIVIL AZCUNA,

SERVICE COMMISSION & TINGA,

PHILIPPINE ECONOMIC CHICO-NAZARIO,

ZONE AUTHORITY, VELASCO, JR.,

Respondents. NACHURA,

REYES,

LEONARDO-DE CASTRO,

BRION, JJ.

Promulgated:

April 30, 2008

X -------------------------------------------------------------------------------------- X

DECISION

AZCUNA, J.:

This is a petition for certiorari[1] alleging that the Court of Appeals (CA) acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated October 30, 2000, April 6, 2001

and March 6, 2002, dismissing petitioner’s petition for certiorari, which in effect sustained the Decision of the Civil Service Commission (CSC) dismissing petitioner from the service.

The facts are as follows:

On June 10, 1998, the Philippine Economic Zone Authority (PEZA), through Officer-in-charge Jesus S. Sirios, charged its employee, petitioner Rodolfo R. Mahinay, for receiving unofficial fees from FRITZ Logistics Phils. Inc. by reason of his office and in consideration of the latter’s rendering escort service to FRITZ’ trucks from Baguio City to Manila and vice-versa. The formal charge reads:

That from 1996 to receipt by the BCEZ Police Station Command of P/Major JOSE C. PANOPIO’s February 19, 1998 directive prohibiting all BCEZ Policemen from accepting unofficial fees from FRITZ Logistics Phils. Inc., respondent P/Capt. RODOLDO R. MAHINAY of the BCEZ Station Command received unofficial fees from FRITZ Logistics Phils. Inc. by reason of his office and in consideration of the latter’s rendering escort service to FRITZ’ trucks . . . from Baguio City to Manila and vice-versa, and whose presence during such escort service is to help lessen delay in the scheduled trip of FRITZ’ cargo by police checkpoints and unscrupulous traffic enforcers encountered along the way, particularly during implementation of the truck ban policy in Metro Manila.[2]

The said conduct of petitioner was alleged to be in violation of Sec. 46 (b) (9), Chapter 6, Subtitle A, Title I, Book V of the Administrative Code of 1987 in relation to Sec. 22 (i), Rule XIV of the Omnibus Civil Service Rules and Regulations.[3]

In his Answer, petitioner admitted receiving the fees from Fritz Logistics Phils., Inc., thus:

x x x

3. That respondent hereby states that the very purpose on why he, or any other special PEZA Police Officer for that matter, is escorting freight trucks from Baguio City to their point of destination is to ensure that the goods will be intact and safely and completely delivered to their destinations; that it would therefore be inaccurate to state that their rendering escort duty is purposely to “lessen delay in the scheduled trip xxx by police checkpoints and unscrupulous traffic enforcers encountered along the way, particularly during the implementation of the truck ban policy in Metro Manila,” that the latter act would just be incidental and relative to their main task above-mentioned;

4. That anent the charge, respondent hereby admits that before the directive by SPL. P/MAJOR JOSE C. PANOPIO dated February 19, 1998, ALL police officers stationed at the Baguio City Economic Zone (BCEZ) were receiving and amount of P300 VOLUNTARILY GIVEN by the FRITZ LOGISTICS PHILS., INC. (FRITZ, for brevity) as and by way of traveling and meal allowance of an escort in proceeding back to Baguio City after coming from NAIA; that hereto attached and made an integral part hereof as Annex “I” is a copy of a confirmation letter by JERRY H. STEHMEIER, Managing Director of FRITZ;

5. That herein respondent declares that his, as well as the other police officers’ receipt of the aforesaid amount of PhP 300.00 was done in all good faith with no intention whatsoever of enriching themselves therefrom;

6. That, concededly, there is remitted by FRITZ to the BCEZ an amount of P500 for the escorts as escort fee resulting into receipt by the escort in the amount of P400 NET; that is, however, indisputable that the same will be received by the particular police officer who went on escort duty after he shall have arrived from Manila and upon presentation of the Certificate of Appearance secured from the Security Services Department of the Philippine Economic Zone Authority x x x;

7. That, at first, there was no such thing as additional allowance from FRITZ but after the transportation fare from Manila/Pasay City to Baguio City increased substantially by half, as well as the costs of other incidental expenses ballooned, FRITZ voluntarily offered the additional allowance after understanding very well that the P400 escort fee is not reasonably sufficient; simple mathematics applied;

8. That, without being repetitive, it must be straightened for the record, that the giving of the P300 by FRITZ was on its own volition without any demand from the escorts;

9. That after receipt of the DIRECTIVE from SPL. P/MAJOR PANOPIO, herein respondent no longer received the P300.00 tendered by FRITZ through its drivers whenever he does escort duty, that in fact, herein respondent directed all his men to stop receiving the P300 allowance from FRITZ in compliance with the directive of their superior, SPL. P/MAJOR PANOPIO;

10. That, like himself, respondent could very well say that all of the other Police Officers in the BCEZ Force never received the additional allowance from FRITZ thereafter, that almost every after an escort duty by a Police Officer, he silently complains that the P400 escort duty received from the Financial Services Division as remitted officially by FRITZ to BCEZ was not sufficient in covering all the incidental expenses he incurred in escorting;

11. That it would not be amiss to state even that considering that these FRITZ closed trucks being escorted leave Baguio City at 2:00 o’clock in the morning, more or less; that considering the time, the escorts could not make cash advances for their expenses and really have to shell out their personal money in the meantime to be reimbursed only after the duty;

12. That on another point, herein respondent feels that this charge against him was only maliciously hurled by some officers who take in slight the prudent and conscientious acts of the respondent in protecting foremost the interest of PEZA;

13. That more particularly, BCEZ Officer-in-Charge Digna D. Torres maliciously imputed these things to malign my reputation and personality after having learned that herein respondent filed several criminal charges against her before the Office of the City Prosecutor, Baguio City solely for the purpose of redressing a wrong committed against his person and honor by Mrs. Torres.[4]

At the hearing of September 30, 1998, petitioner appeared with two counsels who manifested that they were reiterating the defenses stated in petitioner’s Answer. The Hearing Committee required petitioner to put the manifestation in writing because it was, in effect, a waiver of his right to be present and to be heard. Petitioner and his counsels left after submitting the written waiver.

Thereafter, the Special Prosecutor presented his lone witness, Mr. Jerry H. Stehmeier, managing director of FRITZ, who affirmed the contents

of his Affidavit[5] dated September 9, 1998. He testified that the “extra amount” of P300 was in fact actually received by petitioner, who exacted the same from FRITZ, for escorting their “trucks all the way to the airport or all the way to our FRITZ office in Manila.” The testimony was a recantation of his earlier statement contained in a letter dated February 10, 1998 that the extra amount was voluntarily given by FRITZ.

On January 8, 1999, the PEZA rendered a decision finding petitioner guilty of the offense charged. The dispositive portion of the Decision reads:

VIEWED IN THE LIGHT OF THE FOREGOING, the Authority finds the Respondent guilty of the offense as charged and is hereby meted out the penalty of forced resignation without prejudice to the grant of monetary and other fringe benefits, as allowed by existing law and the Civil Service Rules and Regulations.[6]

The PEZA held that all the elements of the offense charged were present in the case. The testimony of Jerry H. Stehmeier proved that the amount of P300 per escort was received by petitioner, and that the receipt of the money was done in the course of official duties. Petitioner’s receipt of P300 per escort from FRITZ was over and above what was officially paid by PEZA to petitioner for escort services rendered.

Petitioner’s motion for reconsideration was denied by the PEZA in a Resolution dated March 11, 1999.

Petitioner appealed to the CSC. In Resolution No. 000878 dated March 30, 2000, the CSC upheld the PEZA’s decision, but modified the penalty of forced resignation to dismissal from the service in accordance with Sec. 52 (A.9), Rule IV, Uniform Rules on Administrative Cases in the Civil Service and Sec. 22 (i),[7] Rule XIV of the Omnibus Civil Service Rules and Regulations. The dispositive portion of the CSC Decision reads:

WHEREFORE, the appeal of Rodolfo Mahinay is hereby dismissed. Accordingly, the decision dated January 8, 1999 of PEZA finding Mahinay guilty of violating Sec. 46 (b) No. 9, Book V of E.O. 292 is affirmed. However the penalty of Forced Resignation is modified to Dismissal pursuant to section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service.[8]

Petitioner’s motion for reconsideration was denied by the CSC in Resolution No. 001698 dated July 21, 2000. Petitioner received a copy of the resolution on August 11, 2000.

On September 12, 2000, petitioner filed with the CA a Motion for Extension of Time to File a Petition for Certiorari, requesting for a period of up to November 10, 2000 within which to file his petition.

On October 30, 2000, the CA issued a Resolution denying the said motion for being the wrong mode of appeal and for being filed out of time. The CA stated that since the assailed Resolution was rendered by a quasi-judicial body, the proper mode of appeal is a petition for review under Rule 43 of the Rules of Court, which petition should be filed within 15 days from notice of the resolution.

On November 9, 2000, petitioner filed the petition for certiorari under Rule 65 of the Rules of Court, seeking the nullification of the CSC Resolution dismissing him from the service.

On April 6, 2001, the CA issued a Resolution stating that it had promulgated the Resolution dated October 30, 2000 dismissing the petition for certiorari, and that the Judicial Records Division Report showed that neither a motion for reconsideration nor a Supreme Court petition on the resolution had been filed. Consequently, the CA ordered the issuance of the corresponding entry of judgment, and noted without action the petition for certiorari filed on November 9, 2000.

Petitioner’s motion for reconsideration was denied by the CA of Appeals in a Resolution dated March 6, 2002.

Hence, this petition.

The issue in this case is whether or not the CA acted with grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing petitioner’s appeal by way of special civil action for certiorari on the ground that it was the wrong mode of appeal and that the appeal was filed out of time.

Petitioner contends that the CA erred in ruling that the petition for certiorari was made to substitute a lost appeal because while a petition for review under Rule 43 was available, it was not an adequate remedy for petitioner considering that he was dismissed from the service on June 9, 1999 by PEZA even before the case was appealed to the Civil Service on June 22, 1999.

The contention is without merit.

As provided by Rule 43 of the Rules of Court, the proper mode of appeal from the decision of a quasi-judicial agency, like the CSC, is a petition for review filed with the CA.

The special civil action of certiorari under Rule 65 of the Rules of Court may be resorted to only when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its/his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

In this case, petitioner clearly had the remedy of appeal provided by Rule 43 of the Rules of Court. Madrigal Transport, Inc. v. Lapanday Holdings Corporation[9] held:

Where appeal is available to the aggrieved party, the action for certiorari will not be entertained. Remedies of appeal (including petitions for review) and certiorari are mutually exclusive, not alternative or successive. Hence, certiorari is not and cannot be a substitute for an appeal, especially if one’s own negligence or error in one’s choice of remedy occasioned such loss or lapse. One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave abuse of discretion.

The Court is aware of instances when the special civil action of certiorari may be resorted to despite the availability of an appeal, such as when public welfare and the advancement of public policy dictate; when the broader interests of justice so require; when the writs issued are null; and when the questioned order amounts to an oppressive exercise of judicial authority.[10] However, the circumstances in this case do not warrant the application of the exception to the general rule provided by Rule 43 of the Rules of Court.

The CA, therefore, properly denied petitioner’s Motion for Extension of Time to File a Petition for Certiorari, which in effect dismissed his Petition for Certiorari.

There have been instances when a petition for certiorari would be treated as a petition for review if filed within the reglementary period. In this case, the petition was filed beyond the reglementary period for filing an appeal under Rule 43, which period is within 15 days from notice of the judgment. Petitioner received a copy of the CSC Resolution dated July 21, 2000 on August 11, 2000, so his last day to file an appeal would be August 26, 2000. However, petitioner filed his Motion for Extension of Time to File a Petition for Certiorari on September 12, 2000, while the petition was actually filed on November 9, 2000. Thus, the Court of Appeals correctly held that the appeal was filed out of time.

Consequently, the decision of the CSC dismissing petitioner from the service stands. The Court deems it proper to reiterate that dismissal from the service carries with it disqualification for reemployment in the government service, and forfeiture of retirement benefits except leave credits. Petitioner is, therefore, entitled to receive the monetary equivalent of his accrued leave credits.[11]

WHEREFORE, the Petition is DISMISSED for lack of merit.

No costs.

SO ORDERED.

ADOLFO S. AZCUNA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO