EN BANC
Agenda of
Item No. 9
G.R. No. 182606 Cesar S. Dumduma, petitioner -versus- Civil Service Commission, respondent.
Promulgated:
October 4, 2011
x----------------------------------------------------------------------------------------x
CONCURRING
AND DISSENTING OPINION
BRION, J.:
I agree
with the majoritys conclusion that Cesar S. Dumduma is administratively liable
for dishonesty and should be dismissed from the service. I disagree, however, with the Courts ruling that
he should be awarded financial assistance of P50,000.00 on the basis of temperance
or whatever equitable consideration this basis stands for. The majority opined
on this point that:
Nevertheless,
the Court recognizes that petitioner was once an outstanding member of the
police force. He risked life and limb serving the citizenry of Region 8 with
total dedication and hard work. His service record shows that, since his
original appointment in 1979, he patiently rose through the ranks until he was
promoted to SPO4 in 1991. While justice exhorts that petitioner suffer the full
penalties imposed by law, temperance cries out that he be recognized
for whatever good he has done prior to his mistake. Thus, the Court
deems proper, on a pro hac vice basis,
to extend financial assistance of P50,000.00 to petitioner, which amount
shall be taken from his forfeited retirement benefits. This award in no sense
mitigates his offense but is made solely out of equity and humanitarian
considerations.[1] (emphasis
ours)
It is unfortunate that so
short a paragraph in an 11-page Decision may unwittingly open the door to a new practice as yet unknown in
Philippine jurisprudence on the grant of financial assistance to employees
validly dismissed from the public service. For this reason and for the awards lack of basis in fact, in law and in reason,
I strongly object to the grant of this award.
Financial assistance in the
context of termination of employment is the award given to a validly dismissed employee, based on the
principles of social justice.[2] In the private sector, jurisprudence is
fairly well developed on the social justice roots of the award and the
conditions for its grant.[3]
In the public sector where every item of expenditure is required to be
based on a specific provision of law, justification for financial assistance to
employees dismissed without their fault
may be found in specific laws covering their termination of employment (such as
laws providing for reorganization or for retrenchment or redundancy),[4]
but no such specific laws exist providing for financial assistance for employees dismissed due to their own
fault or misdeeds.
Conceivably, legal basis may
be found for a grant to validly dismissed
public sector employees in the social justice provisions of the Constitution as
has been done in the private sector. While compassion,[5]
humanitarian considerations[6]
and equity[7]
have been used and cited as reasons in Civil Service and administrative cases
involving court employees, their use has been for the purpose of mitigating the
imposable penalty,[8]
not for the award of financial assistance.
Thus, even jurisprudence has so far been silent on whether a public
servant, validly dismissed for
dishonesty, can be awarded financial assistance.
Dumduma was dismissed from the
service for dishonesty for falsifying his Personal Data Sheet to justify his
promotion. Section 52, Rule IV of the Uniform
Rules on Administrative Cases in the Civil Service (Uniform Rules) classifies dishonesty
as a grave offense punishable with dismissal from the service even for the first offense. A
companion provision Section 58, Rule IV provides for the administrative disabilities that a dismissal
from the service inherently carries. These are cancellation of eligibility,
forfeiture of retirement benefits, and the perpetual disqualification for
reemployment in the government service, unless otherwise provided in the
decision. Section 53, Rule IV of these
same rules provides for the Extenuating, Mitigating, Aggravating, or
Alternative Circumstances that may be considered [i]n the determination of
the penalties to be imposed[.] Among
these circumstances are [l]ength of service in the government and [o]ther
analogous circumstances which the Civil Service Commission may consider even
if not pleaded in the interest of substantial justice[.][9]
Significantly, the Uniform Rules
does not provide for specific norms or standards in imposing penalties, except
for the recognition that the minimum, medium, or maximum of the penalty may be
imposed depending on the mitigating or aggravating circumstances present (Section
53, Rule IV). By analogy with criminal
law, no graduation within the range
of a penalty is however possible where a single indivisible penalty, like
dismissal, is imposed.[10] The order of presentation of the provisions
of Rule IV of the Uniform Rules (with Section 52 providing for the
classification of offenses and their penalties; Section 53 providing for
the recognition and application of mitigating and aggravating circumstances; Section
54 providing for the manner of imposition of penalties; and Section
58 providing for administrative disabilities inherent in certain
penalties) strongly suggests by considering their logical presentation of the
different sections and the relationship of these sections with one another
that the qualifying circumstances under Section 53 apply to the imposable
penalties under Section 52, not to the disabilities
under Section 58 that the administrative
penalties carry.
This conclusion is
strengthened by the terms of Sections 55 and 56, Rule IV of the
Uniform Rules which all refer to the administrative penalties, not to the
Section 58 accessory disabilities, and to the separate treatment of Sections 57
(entitled Administrative Disabilities/Accessories to Administrative
Penalties) and 58 (Administrative Disabilities Inherent in Certain Penalties)
from the preceding Sections 52 to 56. In
fact, the title itself of Section 58, Rule IV (specifically using the terms
Administrative Disabilities) also strongly suggests that the forfeiture of
retirement benefits that a dismissal carries is not in fact a penalty (although
usually referred to as accessory penalties in the decided cases), but a disability that must necessarily be
carried when a dismissal from the service is imposed. Even as an accessory
penalty, however, the Section 53 qualifying circumstances cannot apply as they refer
and apply to administrative penalties, not to the accessory penalties that are
separately treated under Section 58, Rule IV. Understood as a disability in the way
Section 58, Rule IV expressly provides, the legal significance is of course
enormous as a disability is conceptually different from a penalty, whether main
or accessory; specifically, the Section 53 qualifying circumstances apply to administrative
penalties, not to disabilities.
Likewise, the Uniform Rules
does not provide for any standard for classifying dishonesty, although acts
that may generally be classified as dishonest may be more specifically punished
as another offense with the same[11]
or lower[12]
penal consequence. Unless, therefore,
another specific offense is defined and a corresponding penalty provided, any
act attended by the disposition to lie,
cheat, steal or defraud[13]
falls under the rubric of dishonesty that is classified as a grave offense.
The Uniform Rules does not also
contain any saving proviso that allows the grant of financial assistance as an alternative
or substitute that may be decreed when forfeiture of retirement benefits takes
place, or as a benefit that can be
awarded in place of forfeiture of retirement benefits. A proviso on the grant of a benefit takes on
special significance in the public sector as no money may be paid out from the
Treasury unless the payment is based on a specific authorizing provision of
law.[14]
From the jurisprudential end, the Court has
consistently ruled that a finding of dishonesty carries the indivisible penalty
of dismissal. In Remolona v. Civil Service
Commission,[15]
we said:
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.
In Civil Service Commission v. Macud,[16]
we imposed the penalty of dismissal with accessory penalties against the respondent
for her false declaration in her Personal Data Sheet that she successfully
passed the Professional Board Examination for Teachers. We arrived at the same
conclusion in Civil Service Commission v.
Perocho, Jr.[17]
and Bacsasar v. Civil Service
Commission[18] involving dishonesty for using
spurious certificates of eligibility.
In Bacsasar, we even reiterated that dishonesty alone, because it is a
grave offense, carries the extreme penalty of dismissal from the service with
forfeiture of retirement benefits, except accrued leave credits, and perpetual
disqualification from re-employment in the government. We did the same in the more
recent case of Retired Employee,
Municipal Trial Court, Sibonga,
Indeed,
being in the nature of a grave offense, dishonesty carries the extreme penalty
of dismissal from the service with forfeiture of retirement benefits except
accrued leave credits and perpetual disqualification for re-employment in the
government service.
The
Court has been explicit. In the case of Ramos v. Mayor:
Under Section 52 (A)(1) and (A)(6), Rule IV of the
"Uniform Rules on Administrative Cases in the Civil Service"
(Resolution No. 99-1936 dated August 31, 1999), respondent's act of making
untruthful declarations in his PDS renders him administratively liable for
falsification of public document and dishonesty which are classified as grave
offenses and, thus, warrant the corresponding penalty of dismissal from the
service even if either of them is respondent's first offense. Section 58 of
Rule IV thereof states that the penalty of dismissal shall carry with it the
cancellation of eligibility, forfeiture of retirement benefits, and the
perpetual disqualification for reemployment in the government service, unless
otherwise provided in the decision.
What appears clear from all
the above is that the applicable Civil Service Rules themselves do not provide
for the award of financial assistance either as an administrative penalty, as an
accessory disability, or as an independent benefit that can be granted when
retirement pay is declared or deemed to be forfeited. To its credit, the majority recognizes the
existing legal reality as the Decision in fact states:
Dumduma makes a final plea
for leniency but the law and the prevailing jurisprudence binds [sic] the hands of this Court. We cannot change the imposable penalties for
a clear case of dishonesty without at the same time, visiting injustice against
all the other government employees that were similarly placed but received the
full force of the law.[20]
Yet, incongruously, the
majority came to the conclusion (now objected to and which is first quoted in this
Opinion) justifying and awarding on a pro
hac vice basis the grant of financial assistance of P50,000.00 to
Dumduma. Uniquely, the majority does not
do this by citing justice as justification; instead, it vaguely invokes temperancefor
what whatever good he (Dumduma) has done prior to his mistake to support
the grant. This justification, in my
view, is an unacceptable position that should not be allowed to pass without
objection or comment, as the resulting conclusion may henceforth be cited as
basis for the grant of financial assistance in valid dismissal situations. Labeling
the Courts conclusion as pro hac vice
will not make it any less legally unpalatable.
Aside from the complete lack
of basis in the Civil Service Rules as shown in the above analysis, I submit
the following reasons for my objection to the imposition of financial
assistance:
First, the policy of the law is clear: dishonesty is an offense
that the law cannot and should not tolerate; hence, dismissal is imposed as the
penalty even for the first offense. Dismissal also inherently carries the
forfeiture of retirement benefits as a disability.
To be sure, the Court would
be sending the worst possible signal regarding the honesty and integrity that the
public service requires by allowing the grant of the financial assistance
decreed by the present Decision; the Court thereby unmistakably dilutes the laws
policy by imposing the penalty of dismissal and at the same time awarding
financial assistance to the offender. In
effect, the Court imposes the legal policy expressed in the law with its right hand, and, with the left hand, partially takes it
back through the grant of a benefit to the offender that the law does not even expressly
provide for. The Court shall in fact be treading on dangerous constitutional
waters with this kind of conclusion, as it can be accused of judicial legislation
that violates the constitutional rule on separation of powers. Quite possibly, the Court may even be accused
of disregarding the law by ordering the payment of money out of the public
treasury without any specific legal basis.
Second, the Court temperance as used
in the Decision is a moral rather than a legal standard and should be applied only
with utmost care in adjudication. It may
be far more acceptable to use justice or social justice as driving
motivations, as these are concepts that underlie the task of adjudication. Temperance, on the other hand, as a moral
standard is necessarily a subjective one. Judicial prudence, at the very least,
requires that the Court avoid identifying itself with the use of subjective
standards, as it is guided by the rule of law, not by the peculiar dictates of
individual Justices conscience. Following
the analogy used above, the Court, in its Decision, may be said to have
administered justice with its right hand,
and diluted this application of the rule of law with its left hand through the use of a highly subjective standard.
Third, our labor laws and established
jurisprudence applicable to the private sector have recognized the grant of
financial assistance based on social justice as the guiding force.[21] The Court, however, clearly recognized
limitations in invoking social justice when it held:
The policy of social justice
is not intended to countenance wrongdoing simply because it is committed by the
underprivileged. At best it may mitigate the penalty but it certainly will not
condone the offense. Compassion for
the poor is an imperative of every humane society but only when the recipient
is not a rascal claiming an undeserved privilege. Social justice cannot be
permitted to be refuge of scoundrels any more than can equity be an impediment
to the punishment of the guilty. Those who invoke social justice may do so only
if their hands are clean and their motives blameless and not simply because
they happen to be poor. This great policy of our Constitution is not
meant for the protection of those who have proved they are not worthy of it,
like the workers who have tainted the cause of labor with the blemishes of
their own character.[22] [emphasis supplied]
As further parameters in invoking social justice, the
Court likewise ruled in the same case:
We hold that henceforth
separation pay shall be allowed as a measure of social justice only in those instances where the
employee is validly dismissed for causes other than serious misconduct or those
reflecting on his moral character. Where the reason for the valid
dismissal is, for example, habitual intoxication or an offense involving moral
turpitude, like theft or illicit sexual relations with a fellow worker, the
employer may not be required to give the dismissed employee separation pay, or
financial assistance, or whatever other name it is called, on the ground of
social justice.
A contrary rule would, as
the petitioner correctly argues, have the effect, of rewarding rather than
punishing the erring employee for his offense. And we do not agree that the
punishment is his dismissal only and that the separation pay has nothing to do
with the wrong he has committed. Of course it has. Indeed, if the employee who
steals from the company is granted separation pay even as he is validly
dismissed, it is not unlikely that he will commit a similar offense in his next
employment because he thinks he can expect a like leniency if he is again found
out. This kind of misplaced compassion is not going to do labor in general any
good as it will encourage the infiltration of its ranks by those who do not
deserve the protection and concern of the Constitution.[23]
[emphasis supplied]
If these are the parameters in the private sector, the
parameters applicable to the public sector cannot and should not be any less;
public office is a public trust, not simply an ordinary office where the
employment tie is almost purely based on contract. Thus, the private sector parameters, at the
very least, should apply if social justice were to be cited as basis for the
grant of financial assistance.
To belabor the obvious,
Dumdumas dishonesty is an offense that transgresses even the private sector parameters
on the application of social justice. He
was a Senior Police Officer (SPO4) and was the officer-in-charge of the San
Miguel Police Station in San Miguel,
In
justifying the award of financial assistance, the majority implies that length
of service and exemplary performance should be recognized. Length of service,
however, cannot be used to automatically mitigate Dumdumas penalty, as it is
not a magic word that, once invoked, would cloak the penalty with a mitigating
circumstance.[24]
Length of service is two-faced; it can either be a mitigating or aggravating
circumstance depending on the facts of each case.[25]
A review of jurisprudence shows that
while in most cases, length of service operates as a mitigating circumstance
favoring the offender, the contrary is true when the offense committed is
serious[26]
or if length of service is a factor that facilitated the commission of the offense.[27]
In this case, the severity of the offense
cannot be disputed, as the Uniform Rules expressly classify dishonesty as a
grave offense punishable by the capital administrative penalty of dismissal
even for the first offense. The facts also show that Dumdumas length of time
in the police force was a major contributory factor that led him to commit the
offense; Dumduma aspired for a promotional appointment to the position of
Police Inspector because his length of service had brought him in line for the
higher post; his senior police position undoubtedly worked in his favor and
facilitated access to the means to falsify his Civil Service certificate.
Considered from these
perspectives, the conclusion that length of service can be invoked as a
mitigating circumstance can be very alarming. Mindlessly invoked in the future,
our ruling may give length of service a dominance in dismissal cases whose practical
effect is to insulate long-staying employees from the penalty of dismissal; in
blunter terms, at some point in a public servants long term, his length of
service alone can ensure that he can no longer be dismissed from the service.
This consequence, to be sure, is far from the intent of the Civil Service Rules
and farther still from the intent of the framers of the Constitution when they
provided for security of tenure in the civil service.
I also strongly believe that
any recognition, based on the facts of the case, of Dumdumas alleged outstanding
performance and the life he risks daily in serving the citizenry is misplaced,
and can only result in a bad legal precedent if it prevails. Police work, as well as military service,
necessary entails daily risks to life and limb, and cannot be cited by the
police or by the military as a mitigating circumstance except in the truly
exceptional circumstances where risks are
taken above and beyond the call of duty.
Dedication to work to the level of exemplary service, too, should not be
considered as a mitigating circumstance as this is the level of service that
should be expected from every public servant.
Public service is a public trust[28];
to do justice to this trust, exemplary service, at the very least, should be
delivered.
From all indications, exemplary service was what Dumdumas awards and commendations represented. These are not recognitions that place him way above the rest to the point that his service would be labeled as outstanding or exemplary. A spotless service record, free of any administrative charges, is expected of all public servants and is not a distinction that should merit special mention, however lengthy a public servants spotless term has been. The majority opinion, by disregarding this basic character of public service, may be setting a new, but lower, standard of integrity and performance.
It should not also be lost
on us that the offense Dumduma committed carries not only the supreme administrative
penalty of dismissal, but criminal consequences (i.e., falsification of an official document punishable under the
Revised Penal Code) as well. As a veteran police officer who has been given
awards and commendations for services rendered, Dumduma should serve as an
example to be followed in uplifting the morale and the standard of service of
his fellow policemen. To be sure, he cannot serve this purpose given the nature
of the offense he committed and its potential penal consequences. Thus, to accord him mitigation for his kind of
public service cannot but be a bad precedent in highlighting disciplinary cases
as warnings to public employees minded to follow the same path.
Lastly, I do not believe that the characterization of the Courts Decision as a pro hac vice ruling will ever suffice as an excuse for a ruling that obviously lacks legal and factual basis and one that runs against a declared government policy on dishonesty. The case carries no known and meritorious distinguishing feature to justify the special and selective treatment accorded it by this Court. The characterization only reveals what it truly is a ruling with shaky foundations that should not be followed as a precedent because it was only meant for a specific individual. I can only hope that the Courts ruling today, because it is pro hac vice, shall not open the door leading away from the settled rulings and standards on how to treat dishonesty in the government service. Misplaced compassion is the worst signal that the Court can give in a situation where the law itself, that the Court applies, has given clear, express and categorical signs that the public service cannot, and should not, tolerate dishonesty.[29]
[1] Decision, p. 10.
[2] Philippine Long Distance Telephone Co. v. NLRC, 247 Phil. 641 (1988).
[3]
[4] Examples of these laws include: Presidential Decree No. 4, as amended by Presidential Decree Nos. 699 and
1485, Proclaiming the Creation of the National Grains Authority and Providing
Funds Therefor (1972); Republic Act No. 6656 (An Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the Implementation of
Government Reorganization); Republic Act No. 8041 (National Water Crisis Act of
1995), in relation to Executive Order No. 286; and Republic Act No.
9136, Electric Power Industry Reform Act (EPIRA).
[5]
Re: Employees Incurring Habitual Tardiness In
The Second Semester Of 2009,
A.M. No. 2010-11-SC, March 15, 2011; Re:
Irregularity in the Use of Bundy Clock by Sophia M. Castro and Babylin V.
Tayag, Social Welfare Officers II,1 RTC, Office of the Clerk of Court, Angeles City, A.M. No.
P-10-2763,
[6]
Re: Employees Incurring Habitual Tardiness in
the 1st Semester of 2007,
A.M. No. 2007-15-SC, January 19, 2009, 576 SCRA 121; Re:
Administrative Case for Dishonesty Against Elizabeth Ting, Court Secretary I,
and Angelita C. Esmerio, Clerk III, Office of the Division Clerk of Court,
Third Division, A.M. Nos. 2001-7-SC and 2001-8-SC, July 22, 2005, 464
SCRA 1; and Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342,
[7]
Hallasgo v. Commission on Audit Regional
Office No. X, G.R. No.
171340,
8 See notes 5, 6 and 7; the imposable administrative penalties are those expressly provided under Section 52, Rule IV of the Uniform Civil Service Rules.
[9] Section 53 provides: In the determination of the
penalties to be imposed, mitigating, aggravating and alternative circumstances
attendant to the commission of the offense shall be considered.
The
following circumstances shall be appreciated:
a. Physical
illness
b. Good
faith
c. Taking
undue advantage of official position
d. Taking
undue advantage of subordinate
e. Undue
disclosure of confidential information
f. Use
of government property in the commission of the offense
g. Habituality
h. Offense
is committed during office hours and within the premises of the office or
i. building
j. Employment
of fraudulent means to commit or conceal the offense
k. Length
of service in the government
l. Education,
or
m. Other
analogous circumstances
Nevertheless,
in the appreciation thereof, the same must be invoked or pleaded by the proper
party, otherwise, said circumstances shall not be considered in the imposition
of the proper penalty The Commission, however, in the interest of substantial
justice may take and consider these circumstances. [emphasis ours]
[10] Article 61 of the Revised Penal Code (Rules of graduating penalties).
[11]
Duque v. Aspiras, A.M. No.
P-05-2036,
[12]
Office of the Court Administrator v. Isip,
A.M. No.
P-07-2390,
[13] Blacks Law Dictionary, 6th ed., 1990, p. 468.
[14] Section 29(1), Rule VI of the Constitution provides that [n]o money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
[15] 414 Phil. 590 (2001).
[16]
G.R. No. 177531,
[17]A.M.
No. P-05-1985,
[18]
G.R. No. 180853,
[19]
A.M. No. P-10-2833,
[20] Supra note 1.
[21] Philippine Long Distance Telephone Co. v. NLRC, supra note 2.
[22]
[23]
[24]
Civil Service Commission v. Cortez, G.R. No. 155732,
[25]
[26]
[27] Civil Service Commission v. Cortez, supra note 24 at 605-606.
[28] Narvasa
v. Sanchez, Jr., G.R. No. 169449,
[29] Philippine Long Distance Telephone Co. v. NLRC, supra note 2.