G.R. No. 169815

Republic of the Philippines
Supreme Court
Manila

EN BANC

BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR) EMPLOYEES UNION, REGIONAL OFFICE NO. VII, CEBU CITY,

Petitioner,

- versus -

COMMISSION ON AUDIT,

Respondent.

G.R. No. 169815

Present:

Puno, C.J.,

Quisumbing,

Ynares-Santiago,

Carpio,

Austria-Martinez,

Corona,

Carpio Morales,

Azcuna,

Tinga,

Chico-Nazario,

Velasco, Jr.,

Nachura,*

Reyes,

Leonardo-De Castro,

Brion, JJ.

Promulgated:

August 13, 2008

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D E C I S I O N

PUNO, C.J.:

On appeal are the Decision[1] dated April 8, 2005 of respondent Commission on Audit (COA) in LAO-N-2005-119 upholding the disallowance by the COA Legal and Adjudication Office (COA-LAO), Regional Office No. VII, Cebu City of the P10,000.00 Food Basket Allowance granted by BFAR to each of its employees in 1999, and COA Resolution[2] dated August 5, 2005, denying petitioner’s motion for reconsideration of said Decision.

First, the facts:

On October 18, 1999, petitioner Bureau of Fisheries and Aquatic Resources (BFAR) Employees Union, Regional Office No. VII, Cebu City issued Resolution No. 01, series of 1999 requesting the BFAR Central Office for a Food Basket Allowance. It justified its request on the high cost of living, i.e., “the increase in prices of petroleum products which catapulted the cost of food commodities, has greatly affected the economic conditions and living standard of the government employees of BFAR Region VII and could hardly sustain its need to cope up with the four (4) basic needs, i.e., food, shelter, clothing and education.”[3] It also relied on the Employees Suggestions and Incentive Awards System (ESIAS), pursuant to Book V of Executive Order No. 292, or the Administrative Code of 1987, and approved by the Civil Service Commission on December 3, 1996. The ESIAS “includes the granting of incentives that will help employees overcome present economic difficulties, boost their morale, and further commitment and dedication to public service.”[4] Regional Director Corazon M. Corrales of BFAR Region VII indorsed the Resolution, and Malcolm I. Sarmiento, Jr., Director of BFAR recommended its approval. Honorable Cesar M. Drilon, Jr., Undersecretary for Fisheries and Livestock of the Department of Agriculture, approved the request for Authority to Grant a Gift Check or the Food Basket Allowance at the rate of P10,000.00 each to the 130 employees of BFAR Region VII, or in the total amount of P1,322,682.00.[5] On the strength of the approval, Regional Director Corrales released the allowance to the BFAR employees.

On post audit, the Commission on Audit – Legal and Adjudication Office (COA-LAO) Regional Office No. VII, Cebu City disallowed the grant of Food Basket Allowance under Notice of Disallowance No. 2003-022-101 (1999) dated September 19, 2003. It ruled that the allowance had no legal basis and that it violated: a) Sec. 15(d) of the General Appropriations Act of 1999, prohibiting the payment of honoraria, allowances, or other forms of compensation to any government official or employee, except those specifically authorized by law; b) par. 4.5 of Budget Circular No. 16 dated November 28, 1998, prohibiting the grant of food, rice, gift checks, or any other form of incentives/allowances, except those authorized via Administrative Order by the Office of the President; and c) Sec. 12 of Republic Act (R.A.) No. 6758, or the Salary Standardization Law of 1989, which includes all allowances in the standardized salary rates, subject to certain exceptions.

On February 26, 2004, BFAR Regional Office No. VII, through Regional Director Corrales, moved for reconsideration and prayed for the lifting of the disallowance. It argued that the grant of Food Basket Allowance would enhance the welfare and productivity of the employees. Further, it contended that the approval by the Honorable Drilon, Undersecretary for Fisheries and Livestock, of the said benefit was the law itself which vested the specific authority for its release. The Commission on Audit – Legal and Adjudication Office (COA-LAO) Regional Office No. VII, Cebu City denied the motion.

Petitioner appealed to the Commission on Audit – Legal and Adjudication Office (COA-LAO) National, Quezon City. The appeal was denied in a Decision dated April 8, 2005. Petitioner’s motion for reconsideration was likewise denied in a Resolution dated August 5, 2005.

Hence, this appeal.

Petitioner cites the following grounds for its appeal:

1. The disallowance in question is unconstitutional as it contravenes the fundamental principle of the State enshrined under Sections 9 and 10, Article II of the 1987 Constitution, which provide as follows:

SEC. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

SEC. 10. The State shall promote social justice in all phases of national development.[6]

2. The Undersecretary for Fisheries and Livestock is an extension of the Secretary of Agriculture who is an alter-ego of the President. His approval was tantamount to the authority from the Office of the President, as contemplated in DBM Budget Circular No. 16, dated November 28, 1998.[7]

3. The grant of the Food Basket Allowance is in conformity with Sec. 12 of the Salary Standardization Law.[8]

We deny the petition.

First, we rule on the issue of constitutionality. Petitioner invokes the provisions of the 1987 Constitution on social justice to warrant the grant of the Food Basket Allowance. Time and again, we have ruled that the social justice provisions of the Constitution are not self-executing principles ready for enforcement through the courts. They are merely statements of principles and policies. To give them effect, legislative enactment is required. As we held in Kilosbayan, Incorporated v. Morato,[9] the principles and state policies enumerated in Article II and some sections of Article XII are "not self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation."[10]

Second, petitioner contends that the approval of the Department of Agriculture (DA) Undersecretary for Fisheries and Livestock of the Food Basket Allowance is the law which authorizes its release. It is crystal clear that the DA Undersecretary has no authority to grant any allowance to the employees of BFAR. Section 4.5 of Budget Circular No. 16 dated November 28, 1998 states:

All agencies are hereby prohibited from granting any food, rice, gift checks, or any other form of incentives/allowances except those authorized via Administrative Order by the Office of the President.

In the instant case, no Administrative Order has been issued by the Office of the President to exempt BFAR from the express prohibition against the grant of any food, rice, gift checks, or any other form of incentive/allowance to its employees.

Petitioner argues that the grant of the Food Basket Allowance does not violate Sec. 12 of R.A. No. 6758 or the Salary Standardization Law. This law was passed to standardize salary rates among government personnel and do away with multiple allowances and other incentive packages and the resulting differences in compensation among them.[11] Sec. 12 of the law provides:

Consolidation of Allowances and Compensation. — All allowances, except for representation and transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensation not otherwise specified herein as may be determined by the DBM [Department of Budget and Management], shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized.

Existing additional compensation of any national government official or employee paid from local funds of a local government unit shall be absorbed into the basic salary of said official or employee and shall be paid by the National Government.

Under Sec. 12, as quoted, all kinds of allowances are integrated in the standardized salary rates. The exceptions are:

1. representation and transportation allowance (RATA);

2. clothing and laundry allowance;

3. subsistence allowance of marine officers and crew on board government vessels;

4. subsistence allowance of hospital personnel;

5. hazard pay;

6. allowances of foreign service personnel stationed abroad; and

7. such other additional compensation not otherwise specified herein as may be determined by the DBM.

Petitioner contends that the Food Basket Allowance falls under the 7^th category above, that of “other additional compensation not otherwise specified herein as may be determined by the DBM.”

The Court has had the occasion to interpret Sec. 12 of R.A. No. 6758. In National Tobacco Administration v. Commission on Audit,[12] we held that under the first sentence of Section 12, the benefits excluded from the standardized salary rates are the "allowances" or those which are usually granted to officials and employees of the government to defray or reimburse the expenses incurred in the performance of their official functions. These are the RATA, clothing and laundry allowance, subsistence allowance of marine officers and crew on board government vessels and hospital personnel, hazard pay, and others, as enumerated in the first sentence of Section 12. We further ruled that the phrase "and such other additional compensation not otherwise specified herein as may be determined by the DBM" is a catch-all proviso for benefits in the nature of allowances similar to those enumerated. In Philippine Ports Authority v. Commission on Audit,[13] we explained that if these allowances were consolidated with the standardized salary rates, then government officials or employees would be compelled to spend their personal funds in attending to their duties.

In the instant case, the Food Basket Allowance is definitely not in the nature of an allowance to reimburse expenses incurred by officials and employees of the government in the performance of their official functions. It is not payment in consideration of the fulfillment of official duty. It is a form of financial assistance to all officials and employees of BFAR. Petitioner itself stated that the Food Basket Allowance has the purpose of alleviating the economic condition of BFAR employees.

Next, petitioner relies on National Compensation Circular No. 59 dated September 30, 1989, issued by the DBM, which is the “List of Allowances/Additional Compensation of Government Officials and Employees which shall be Deemed Integrated into the Basic Salary.” The list enumerates the following allowances/additional compensation which shall be incorporated in the basic salary, hence, may no longer be granted to government employees:

1. Cost of Living Allowance (COLA);

2. Inflation connected allowance;

3. Living Allowance;

4. Emergency Allowance;

5. Additional Compensation of Public Health Nurses assigned to public health nursing;

6. Additional Compensation of Rural Health Physicians;

7. Additional Compensation of Nurses in Malacañang Clinic;

8. Nurses Allowance in the Air Transportation Office;

9. Assignment Allowance of School Superintendents;

10. Post allowance of Postal Service Office employees;

11. Honoraria/allowances which are regularly given except the following:

a. those for teaching overload;

b. in lieu of overtime pay;

c. for employees on detail with task forces/special projects;

d. researchers, experts and specialists who are acknowledged authorities in their field of specialization;

e. lecturers and resource persons;

f. Municipal Treasurers deputized by the Bureau of Internal Revenue to collect and remit internal revenue collections; and

g. Executive positions in State Universities and Colleges filled by designation from among their faculty members.

12. Subsistence Allowance of employees except those authorized under EO [Executive Order] No. 346 and uniformed personnel of the Armed Forces of the Philippines and Integrated National Police;

13. Laundry Allowance of employees except those hospital/sanitaria personnel who attend directly to patients and who by the nature of their duties are required to wear uniforms, prison guards and uniformed personnel of the Armed Forces of the Philippines and Integrated National Police; and

14. Incentive allowance/fee/pay except those authorized under the General Appropriations Act and Section 33 of P.D. No. 807.

Petitioner invokes the rule of statutory construction that “what is not included is excluded.” Inclusio unius est exclusio alterius. Petitioner claims that the Food Basket Allowance is distinct and separate from the specific allowances/additional compensation listed in the circular.

Again, we reject petitioner’s contention. The Food Basket Allowance falls under the 14^th category, that of incentive allowance/fee/pay. Petitioner itself justified the Food Basket Allowance as an incentive to the employees to encourage them to be more productive and efficient.[14] Under National Compensation Circular No. 59, exceptions to the incentive allowance/fee/pay category are those authorized under the General Appropriations Act (GAA) and Section 33 of Presidential Decree (P.D.) No. 807. Sec. 15(d) of the GAA for Fiscal Year 1999 or R.A. No. 8745 clearly prohibits the payment of honoraria, allowances or other forms of compensation to any government official or employee, except those specifically authorized by law. There is no law authorizing the grant of the subject Food Basket Allowance. Further, Sec. 33 of P.D. No. 807 or the Civil Service Decree of the Philippines does not exempt the Food Basket Allowance from the general rule. Sec. 33 states:

Section 33. Employee Suggestions and Incentive Award System. There shall be established a government-wide employee suggestions and incentive awards system which shall be administered under such rules, regulations, and standards as may be promulgated by the Commission.

In accordance with rules, regulations, and standards promulgated by the Commission, the President or the head of each department or agency is authorized to incur whatever necessary expenses involved in the honorary recognition of subordinate officers and employees of the government who by their suggestions, inventions, superior accomplishment, and other personal efforts contribute to the efficiency, economy, or other improvement of government operations, or who perform such other extraordinary acts or services in the public interest in connection with, or in relation to, their official employment.

We are not convinced that the Food Basket Allowance falls under the incentive award system contemplated above. The decree speaks of suggestions, inventions, superior accomplishments, and other personal efforts contributed by an employee to the efficiency, economy, or other improvement of government operations, or other extraordinary acts or services performed by an employee in the public interest in connection with, or in relation to, his official employment. In the instant case, the Food Basket Allowance was granted to all BFAR employees, without distinction. It was not granted due to any extraordinary contribution or exceptional accomplishment by an employee. The Food Basket Allowance was primarily an economic monetary assistance to the employees.

Lastly, we note, as the Office of the Solicitor General, on behalf of respondent did, that petitioner failed to exhaust its administrative remedies. It stopped seeking remedies at the level of respondent’s Legal and Adjudication Office. It failed to appeal the latter’s adverse decision to the Commission on Audit proper. The consequence for failure to exhaust administrative remedies is clear: the disallowance, as ruled by the Commission on Audit – Legal and Adjudication Office Regional Office No. VII, Cebu City and upheld by the Commission on Audit – Legal and Adjudication Office National, Quezon City, became final and executory. Sections 48 and 51 of Presidential Decree No. 1445, or the Government Auditing Code of the Philippines provide:

Section 48. Appeal from decision of auditors. – Any person aggrieved by the decision of an auditor of any government agency in the settlement of an account or claim may, within six months from receipt of a copy of the decision, appeal in writing to the Commission.

Section 51. Finality of decisions of the Commission or any auditor. – A decision of the Commission or of any auditor upon any matter within its or his jurisdiction, if not appealed as herein provided, shall be final and executory.

IN VIEW WHEREOF, the petition is DENIED. The Decision and Resolution of the Commission on Audit – Legal and Adjudication Office dated April 8, 2005 and August 5, 2005, respectively, in LAO-N-2005-119, are AFFIRMED.

SO ORDERED.

REYNATO S. PUNO

Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO