G.R. No. 170146 – Hon. Waldo Q. Flores, in his capacity
as Senior Deputy Executive Secretary in the Office of the President, Hon. Arthur P. Autea, in his capacity
as Deputy Executive Secretary in the Office of the President, and the
PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC), Petitioners, v. ATTY. ANTONIO F.
MONTEMAYOR, Respondent.
x-----------------------------------------------------------------------------------------x
DISSENTING OPINION
BERSAMIN, J.:
I
vote to deny the petition.
Firstly,
I believe that the Court of Appeals (CA) correctly held that the petitioner had
not been afforded his right to due process.
And,
secondly, assuming that the investigation of the respondent by the Presidential
Anti-Graft Commission (PAGC) was sustainable, and that the Office of the
President (OP) validly relied on PAGC’s findings and recommendation, the
penalty of dismissal was too harsh.
Antecedents
The PAGC investigated the respondent,
Atty. Antonio F. Montemayor, a Regional Director II of the Bureau of Internal
Revenue in
The
PAGC then directed the respondent to file his counter-affidavit or verified
answer.[2] However,
he failed to submit his counter-affidavit or verified answer.
On
On
On
It is noteworthy that the respondent
was not given a copy of the prejudicial PAGC resolution.
On
WHEREFORE, premises considered, respondent
Antonio F. Montemayor is hereby found administratively liable as charged and,
as recommended by PAGC, meted the penalty of dismissal from the service, with
all accessory penalties.
SO ORDERED.
The respondent sought reconsideration
of the OP decision, arguing that he had been denied his right to due process;
that PAGC had overstepped its bounds; and that the decision had erred in
holding him liable for violation of Section 7, RA 3019, as amended, and/or
Section 8, RA 6713.
The OP denied the motion through the resolution dated
The
respondent thus went to the CA on appeal via
petition for review (Rule 43 of the Rules
of Court).[8]
In its decision dated October 19,
2005,[9] the
CA held in favor of the respondent and set aside the decision of the OP, mainly
because the CA found that the respondent had been deprived of the opportunity
to present controverting evidence amounting to a denial of his right to due
process; and because a public document attached to the record tended to show
“in no uncertain terms that petitioner was justified when he did not include
and declare the 2001 Ford Expedition in his 2002 SSAL.” The CA decreed:
WHEREFORE, premises considered, finding the impropriety of petitioner’s discharge from government service on ground of violation of due process, the herein impugned March 23, 2004 Decision and May 13, 2004 Resolution of the Office of the President are hereby REVERSED and SET ASIDE.
SO ORDERED.[10]
The
petitioners, through the Office of the Solicitor General, are now before us to
assail the CA decision.
Submissions
The
reasons for my vote to deny the petition follow.
A.
The respondent was denied due process
Section 2(3), Article IX-B of the
Constitution provides that “no officer or employee of the civil service shall
be removed or suspended except for cause provided by law.” Both the Civil Service Law and the Administrative Code of 1987 reflect this
constitutional edict of security of tenure for employees in the Civil Service.
The guarantee of security of tenure under
the Constitution and the statutes is an important cornerstone of the Civil
Service system instituted in our country, because it secures for a faithful
employee permanence of employment, at least for the period prescribed by law,
and frees the employee from the fear of
political and personal reprisals.[11]
Being a Regional Director II of the
Bureau of Internal Revenue in
However, the records show that the PAGC subjected the respondent to a unilateral
investigation and did not afford due process of law to him. The PAGC crowned
its investigation with the rushed resolution issued only a few days from the
expiration of the TRO issued by the CA. Such resolution became the basis for
the OP to decide against him by dismissing him from the service.
I submit that the investigation of
the PAGC suffered from fundamental defects and flaws that infirmed the OP’s
decision against the respondent.
Firstly, the respondent’s
non-submission of his counter-affidavit or verified answer as directed by PAGC was
not motivated by bad faith, considering his firm belief, then and now, that the
PAGC did not have jurisdiction to administratively or disciplinarily
investigate him. On the contrary, his non-submission should not be taken
against him, for his act of bringing the suit in the CA precisely to challenge
the PAGC’s jurisdiction singularly exhibited his undeterred resolve to contest
the charges made against him.
Secondly, there
was a rush on the part of the PAGC to find the respondent guilty of the
charges. The rush was clearly manifested in the issuance by the PAGC of its
resolution against him even without taking into consideration any explanation
and refutation of the charges that he might make, and even before the CA could finally
resolve his suit to challenge the PAGC’s jurisdiction to investigate him.
The rush of the PAGC to find the
respondent guilty of the charges and to recommend his dismissal from the
service did not escape the attention of the CA, which forthrightly observed, viz:[14]
After
a careful analysis of the procedural antecedents surrounding the instant case
vis-à-vis the foregoing doctrine on the matter of due process, it did not escape Us that undue haste and
apparent precipitation attended the proceedings before the PAGC, which
ultimately recommended the dismissal of petitioner from government service to
the OP. Quite clearly, the PAGC issued the September 1, 2003 Resolution/Report
recommending to the Office of the President petitioner’s discharge by relying
solely upon the documentary evidence that it secured from the BIR, LTO, and
PCIJ, and without having the benefit of passing upon and evaluating the
evidence that petitioner might have to offer to establish that he does not
deserve to be discharged from government service. It is to be remembered
that in a resolution promulgated on
Yet, simple prudence
and innate fairness should have dictated that the PAGC first accorded to the
respondent an opportunity to respond to the charges once the TRO issued by the
CA expired without the writ of injunction being issued – simple prudence, considering that his
challenge to the PAGC’s jurisdiction remained
at that point an issue still to be resolved
by the CA; and innate fairness, considering that he was entitled to all safeguards because his honor,
reputation, and career were on the line. That opportunity would be to enable
him to render his explanation in his defense; after all, there was no urgency
to discipline him! Denying him such opportunity was ignoring his right to be
heard upon a matter that put his entire career on the line.
Thirdly, the majority
consider the respondent to have abandoned his right to present evidence by failing
to move for a reconsideration of the PAGC resolution, or seeking another
opportunity to present his side.
I submit that the respondent did not
abandon his right to present evidence. For one, the records bear out that the PAGC
resolution came to his
knowledge for the first time only
when he received the OP decision dated
And, fourthly, the recitals of the OP resolution dated
This refers to the motion of Antonio F. Montemayor seeking reconsideration of the Decision of this Office dated March 23, 2004, and accordingly prays that a new one be rendered, reversing and setting aside the earlier decision, ultimately exonerating him from the charges.
It will be recalled that this Office, in the assailed Decision, fully agreed with the recommendation of the Presidential Anti-Graft Commission (PAGC), upholding the legal premises and factual findings contained in said decision.
Movant raises the following grounds:
1. Respondent was deprived of due process.
2. PAGC overstepped its bounds.
3. The Decision erred in holding respondent liable for violation of Section 7, RA 3019, as amended, and/or Section 8 of RA 6713.
The motion has to fail. The issues raised involve factual matter, which movants attempts to argue prolifically. However, as held in the earlier Decision of this Office, the “findings of fact and conclusions of any adjudicative body, which can be considered as a trier of facts on specific matters within its field of expertise, should be considered as binding and conclusive upon the appellate courts when supported by substantial evidence, as they were in a better position to assess and evaluate the credibility of the contending parties and the validity of their respective evidence”
Upon due consideration, this Office finds no cogent reason to disturb its earlier Decision. We have carefully reviewed the arguments raised in the instant motion and find the same to be a mere reiteration of matters previously considered and found to be without merit in the assailed decision. A motion for reconsideration which does not make out “any new matter sufficiently persuasive to induce modification of judgment will be denied.”[17]
I contend that the OP’s complete
reliance on the PAGC’s findings and recommendation constituted a gross
violation of administrative due process as set forth in Ang Tibay v. Court
of Industrial Relations,[18] to
wit:
1.
There must be a hearing, which includes
the right to present one’s case and to submit evidence in support thereof;
2.
The tribunal must consider the evidence
presented;
3. The decision must have something to
support itself;
4. The evidence must be substantial;
5. The decision must be rendered on the
evidence presented at the hearing or, at least, contained in the record and
disclosed to the parties;
6. The tribunal or any of its judges must act
on its or his own independent consideration of the facts and the law of the
controversy, and not simply accept the views of a subordinate in arriving at a
decision; and
7. The board or body should, in all
controversial questions, render its decision in such a manner that the parties
to the proceeding can know the various issues involved, and the reasons for the
decision.
It is clear from Ang Tibay that the OP should have itself reviewed and appreciated the
evidence presented and independently
considered the facts and
the law of the controversy, because the PAGC was only the OP’s fact-finding
subordinate. The OP could not
just accept the entire
findings and recommendation of the PAGC in arriving at a decision, considering
that such a shortcut was unfair and impermissible. Thereby, the OP took
for granted the fact that at stake were the honor, the reputation, and the
livelihood of the person administratively charged.[19] The
OP’s action consequently left its decision bereft of proper factual and legal basis.
Furthermore, the OP’s
statement that the
respondent’s arguments in his Motion for Reconsideration With Motion For
Leave To Admit Explanation/Refutation of Complaint were “a mere reiteration
of matters previously considered” was a patent
untruth. The OP conveniently and unfoundedly ignored that neither the PAGC
nor the OP had earlier considered and taken into account his evidence and
explanation (of the alleged failure to disclose the acquired vehicles in his
SAL) which were being presented in the case only
for the first time through the Motion for Reconsideration With Motion
For Leave To Admit Explanation/Refutation of Complaint.
Would the result be
probably different had the OP itself
considered and passed upon the explanation and evidence submitted in the Motion for Reconsideration With
Motion For Leave To Admit Explanation/Refutation of Complaint?
I maintain so.
The OP, if objective and
fair-minded, was likely not to have
immediately adopted the PAGC’s findings and recommendation, but, instead, would
have easily found in favor of the respondent, for there were good and valid
reasons towards that end. The CA held so in its decision:[20]
Furthermore, a public document attached on record tends to show in no uncertain terms that petitioner was justified when he did not include and declare the 2001 Ford Expedition in his 2002 SSAL. Apparently, petitioner already conveyed and transferred the ownership over the 2001 Ford Expedition in favor of a certain Raymundo Ramon P. Lacson on the strength of a duly notarized Deed of Sale of Motor Vehicle executed on December 15, 2002 (Rollo p. 39). Perforce, while it may have been true that petitioner still remains as the registered owner of the 2001 Ford Expedition, this supposed ownership extends only in so far as LTO registration and recording purposes are concerned, but strictly and legally speaking, real and actual ownership over the subject automobile has already been completely divested and effectively transferred from petitioner to Raymundo Ramon P. Lacson. In the case of Aguilar, Sr. vs. Commercial Savings Bank (360 SCRA 395), the High Court pronounced, in essence, that automobile registration is required not to make said registration the operative act to determine the identity of the person to whom the ownership over the subject automobile is actually transferred and vested. Unlike in land registration cases, the administrative proceeding of registration does not bear any essential relation to the contract of sale between the parties (Chinchilla v. Rafael & Verdague, 39 Phil. 888). The main aim of motor vehicle registration is merely to identify the registered owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefore can be fixed on a definite and specific individual, that is, the registered owner. Bringing this instructive doctrine to the fore, it is clear that while petitioner is still the owner of the 2001 Ford Expedition per LTO registration, the contrary is true as far as the actual facts are concerned, for the real owner of the said automobile since December 15, 2002 is already Raymundo Ramon P. Lacson. Simply put, petitioner not being the owner of the 2001 Ford Expedition anymore as early as December 15, 2002, there is no longer any legal necessity or obligation for him to include and declare the said automobile in his 2002 SSAL, which covers only those properties actually owned by petitioner as of December 31, 2002.
Also, the OP’s
statement in the resolution dated May 13, 2004 that the “findings of fact and
conclusions of any adjudicative body, which can be considered as a trier of
facts on specific matters within its field of expertise, should be considered
as binding and conclusive upon the appellate courts when supported by
substantial evidence” unraveled yet another weakness infecting the OP’s
decision against the respondent. The statement spotlighted two fundamental errors, namely: one, contrary
to the Ang Tibay dictum, the
OP did not itself consider and pass
upon the evidence and explanation being submitted by the respondent for the
first time; and, two, the OP
unwarrantedly considered itself appellate in relation to the PAGC.
Having
just explained the first of the fundamental errors, I need only to expound on
the second one now.
I
wish to stress that the President’s power to investigate and discipline a
presidential appointee was
original, not appellate. If we were
to accord deference to the rule of delegata potestas delegare non potest,
therefore, such original power could not be delegated to the subordinate PAGC, in
the absence of any law that expressly authorized the delegation, for the rule was
rooted in the ethical principle that delegated power
constituted not only a right but a duty to be performed by the delegate through the instrumentality of his own
judgment, not through the intervening mind of another.[21] This inevitably signified that the OP
should directly exercise its power, instead
of simply adopting the PAGC’s entire findings and recommendation.
Yet, by holding itself as an appellate body
in relation to the PAGC, which, in the first place, was not even performing
adjudicative powers, and by deeming itself bound and concluded by the PAGC’s
findings and recommendation, the OP committed manifest grave abuse of
discretion in the exercise of its vaunted power to investigate and discipline. The
OP’s jurisdictional error should be overturned.
B.
Penalty of dismissal was too harsh
The OP dismissed the
respondent for his failure to declare some vehicles in his 2001 and 2002 SSAL, viz:
After a circumspect study of the case, this Office fully
agrees with the findings that hold it together. Respondent failed to disclose
in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of
the relevant provisions of RA No. 3019 in relation to RA No. 6713. He was, to
be sure, afforded ample opportunity to explain his failure, but he opted to let
the opportunity pass by.
WHEREFORE, premises considered, respondent Antonio F.
Montemayor is hereby found administratively liable as charged and, as
recommended by PAGC, meted the penalty of dismissal from the service, with all
accessory penalties.
SO ORDERED.[22]
In
proceeding against the respondent, both the PAGC and the OP relied upon the following
provisions of Republic Act No. 6713,[23] thus:
Section 8. Statements and Disclosure. – Public officials and employees have an obligation to accomplish and
submit declarations under oath of, and the public has the right to know, their
assets, liabilities, net worth and financial and business interests including
those of their spouses and of unmarried children under eighteen (18) years of
age living in their households.
(A) Statements of
Assets and Liabilities and Financial Disclosure. – All public officials and employees, except
those who serve in an honorary capacity, laborers and casual or temporary
workers, shall file under oath their Statement of Assets, Liabilities and Net
Worth and a Disclosure of Business Interests and Financial Connections and
those of their spouses and unmarried
children under eighteen (18) years of age living in their households.
x x x
Section 11. Penalties. – (a) Any public official or employee, regardless of whether or not he holds
office or employment in a casual, temporary, holdover, permanent or regular
capacity, committing any violation of
this Act shall be punished with a fine not exceeding the equivalent of
six (6) months salary or suspension not
exceeding one (1) year, or removal
depending on the gravity of the offense after due notice and hearing by the appropriate body or agency.
If the violation is punishable by a heavier penalty under another law, he shall
be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of
this Act shall be punishable with imprisonment not exceeding five (5) years, or
a fine not exceeding five thousand pesos (P5,000), or both, and, in the
discretion of the court of competent jurisdiction, disqualification to hold
public office.
(b) Any violation
hereof proven in a proper administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or employee, even if no criminal
prosecution is instituted against him.
x x x
Section 12. Promulgation of Rules and Regulations, Administration
and Enforcement of this Act. - The Civil Service Commission shall have the
primary responsibility for the administration and enforcement of this Act. It
shall transmit all cases for prosecution arising from violations of this Act to
the proper authorities for appropriate action: Provided, however, That it may
institute such administrative actions and disciplinary measures as may be
warranted in accordance with law. Nothing in this provision shall be construed
as a deprivation of the right of each House of Congress to discipline its
Members for disorderly behavior.
The Civil Service
Commission is hereby authorized to promulgate rules and regulations necessary
to carry out the provisions of this Act, including guidelines for individuals
who render free voluntary service to the Government. The Ombudsman shall likewise take steps to protect
citizens who denounce acts or omissions of public officials and employees which
are in violation of this Act.
It is clear from the foregoing
provisions, however, that the penalty for a violation of the provisions of RA 6713, inclusive of
the failure to accomplish and submit SSAL under
Section 8, supra, is not exclusively
removal or dismissal of the erring public official or employee. Section 11 (b)
should be applied in conjunction with
Section 11 (a), which specifies a punishment of either
a (1) fine not exceeding the
equivalent of six months salary,
or (2) suspension not exceeding one year, or
(3) removal, depending on the gravity of the offense.
Thus, although Section 11 (b) states that a violation of the provisions of RA 6713,
if proven in a proper administrative
proceeding and warranted depending on the gravity of the
offense, shall be sufficient cause for the removal or dismissal of the
public official or employee even without a criminal prosecution, such provision
cannot be understood as immediately warranting dismissal without due regard to
the gravity of the offense.
Moreover, Section 12 of RA 6713 entrusts
the primary responsibility to administer and enforce RA 6713 in the Civil Service
Commission (CSC); and expressly vests in the CSC the authority to promulgate
rules and regulations necessary to carry out the provisions of RA 6713. For that purpose, the CSC
promulgated the Omnibus Rules
implementing Book V of Executive Order No. 292 and other pertinent Civil
Service Laws, which relevantly provide:
RULE XIV DISCIPLINE
Section 16. In the determination of penalties to be imposed, mitigating and aggravating circumstances may be considered. Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the proper party, otherwise, the said circumstances shall not be considered in the determination of the proper penalty to be imposed against the respondent concerned.
Section 17. If the respondent is found guilty of two or more charges or counts, the penalty imposed should be that corresponding to the most serious charge or count and the rest may be considered as aggravating circumstances.
Section 18. The imposition of the penalty shall be made in accordance with the manner herein below detailed, provided the penalty attached to the offense is divisible into minimum, and maximum, to wit:
(a) The minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are present;
(b) The medium of the penalty shall be imposed where no mitigating and aggravating circumstances are present or when both are present they equally offset each other;
(c) The maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present;
Where aggravating and mitigating circumstances are present, the minimum of the penalty shall be applied where there are more mitigating circumstances present; the medium period if the circumstances equally offset each other; and the minimum where there are more aggravating circumstances.
x x x
Section 23. Administrative offenses with its corresponding penalties are classified into grave, less grave, and
light depending on the gravity of its nature and effects of said acts on
the government service
x x x
The following are less grave offenses with their corresponding penalties:
x x x
(i) Failure to file Sworn Statements of Assets, Liabilities and Networth, and Disclosure of Business Interest and Financial Connections including those of their spouse and unmarried children under eighteen years of age living in their households
1st
offense - Suspension for one (1) month and one (1) day to six months
2nd offense- Dismissal.
The OP meted dismissal
from the service on the respondent. In so doing, the OP ignored that under the implementing
rules and regulations of the CSC, the failure to file the SSAL was only a less grave offense, which left the omission
to declare certain assets in the SSAL to be not a grave offense.
As a result, there was a
great disparity between the violation or offense committed by the respondent, on
one hand, and the penalty imposed on him, on the other hand. We should not
allow the disparity to last, for a grave injustice is committed in the name of
justice when the penalty imposed is grossly disproportionate to the wrong
committed.[24] The
disparity is offensive to our consistent adherence to the principle that the
penalty to be imposed on any erring employee must be commensurate with the
gravity of his offense.[25]
As we held in Civil Service Commission v. Ledesma:[26]
We stress that the law does not tolerate misconduct by a
civil servant. Public service is a public trust, and whoever breaks that
trust is subject to sanction. Dismissal
and forfeiture of benefits, however, are not penalties imposed for all
infractions, particularly when it is a first offense. There must be
substantial evidence that grave
misconduct or some other grave offense meriting dismissal under the law was committed.
It is not amiss to cite Cavite
Crusade for Good Governance v. Judge Cajigal,[27] where the Court found the respondent
presiding judge of the Regional Trial Court in Cavite guilty of violation of
Section 7 of RA 3019 and Section 8 of RA 6713 for his failure to file on time
his SSAL and his non-filing of his SSAL in some years. In imposing the penalty
against him, the Court gave due consideration to his service in the Judiciary
and to the fact that he later filed his SSAL, and suspended him for six months without pay but ordered him to pay a
fine of P20,000.00, with a stern warning that a repetition of the same
or similar acts would be dealt with more severely.
In
fine, even assuming that the respondent failed to correctly include some assets
in his SSAL, his failure did not warrant his immediate dismissal upon his first
violation.
IN VIEW OF THE FOREGOING, I vote to deny the petition.
LUCAS P. BERSAMIN
Associate Justice
[1] Rollo, pp. 7-8.
[2]
[3] CA Rollo, pp. 77-80.
[4]
[5]
[6] Rollo, pp. 72-85.
[7]
[8] CA Rollo, pp. 4-26.
[9] CA Decision penned by Justice Rosmari D. Carandang, and concurred in by Associate Justices Andres B. Reyes, Jr. (now Presiding Justice of the CA) and Monina Arevalo-Zenarosa (retired); rollo, pp. 56-67.
[10]
[11]
[12] Section 5 of P.D. 807 provides:
Section. 5. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: x x x
3. Positions in the Career Service; namely Undersecretary x x x Regional Director x x x and other officers of equivalent rank as may be identified by the Career Service Board, all of whom are appointed by the President;
x x x
[13] See Larin v. Executive Secreatary, G.R. No.
112745,
[14] Rollo, pp. 62-64.
[15] Rollo, pp. 86-91.
[16] CA Rollo, pp. 35-45.
[17] Underscoring is supplied for emphasis only.
[18] 69 Phil. 635, (1940).
[19] DOH v. Camposano, G.R. No. 157684,
[20] Rollo, pp. 65-66.
[21]
[22] Rollo, p. 90.
[23] An Act Establishing A Code Of Conduct And Ethical Standards For Public Officials And Employees, To Uphold The Time-Honored Principle Of Public Office Being A Public Trust, Granting Incentives And Rewards For Exemplary Service, Enumerating Prohibited Acts And Transactions And Providing Penalties For Violations Thereof, And For Other Purposes.
[24] HSBC v. NLRC, G.R. No. 116542,
[25] Manila Memorial Park Cemetery, Inc. v.
Delia V. Panado, G.R. No. 154521.
[26] G.R.
No. 154521,
[27] A.M. No. RTJ-00-1562,