PRUDENCIO BANTOLINO vs. COCA-COLA BOTTLERS PHILS., INC., G.R. No. 153660 FACTS: On 15 February 1995 sixty-two (62) employees of respondent Coca-Cola Bottlers, Inc., and its officers, Lipercon Services, Inc., People's Specialist Services, Inc., and Interim Services, Inc., filed a complaint against respondents for unfair labor practice through illegal dismissal, violation of their security of tenure and the perpetuation of the "Cabo System." For failure to prosecute as they failed to either attend the scheduled mandatory conferences or submit their respective affidavits, the claims of fifty-two (52) complainant-employees were dismissed. Thereafter, Labor Arbiter Jose De Vera conducted clarificatory hearings to elicit information from the ten (10) remaining complainants (petitioners herein) relative to their alleged employment with respondent firm. In substance, the complainants averred that in the performance of their duties as route helpers, bottle segregators, and others, they were employees of respondent Coca-Cola Bottlers, Inc. They further maintained that when respondent company replaced them and prevented them from entering the company premises, they were deemed to have been illegally dismissed. In lieu of a position paper, respondent company filed a motion to dismiss complaint for lack of jurisdiction and cause of action, there being no employer-employee relationship between complainants and Coca-Cola Bottlers, Inc., and that respondents Lipercon Services, People's Specialist Services and Interim Services being bona fide independent contractors, were the real employers of the complainants. As regards the corporate officers, respondent insisted that they could not be faulted and be held liable for damages as they only acted in their official capacities while performing their respective duties. On 29 May 1998 Labor Arbiter Jose De Vera rendered a decision

ordering respondent company to reinstate complainants to their former positions with all the rights, privileges and benefits due regular employees, and to pay their full back wages which, with the exception of Prudencio Bantolino whose back wages must be computed upon proof of his dismissal as of 31 May 1998, already amounted to an aggregate of P1,810,244.00. In finding for the complainants, the Labor Arbiter ruled that in contrast with the negative declarations of respondent company's witnesses who, as district sales supervisors of respondent company denied knowing the complainants personally, the testimonies of the complainants were more credible as they sufficiently supplied every detail of their employment, specifically identifying who their salesmen/drivers were, their places of assignment, aside from their dates of engagement and dismissal. On appeal, the NLRC sustained the finding of the Labor Arbiter that there was indeed an employer-employee relationship between the complainants and respondent company. Respondent Coca-Cola Bottlers appealed to the Court of Appeals which, although affirming the finding of the NLRC that an employer-employee relationship existed between the contending parties, nonetheless agreed with respondent that the affidavits of some of the complainants, namely, Prudencio Bantolino, Nestor Romero, Nilo Espina, Ricardo Bartolome, Eluver Garcia, Eduardo Garcia and Nelson Manalastas, should not have been given probative value for their failure to affirm the contents thereof and to undergo cross-examination. As a consequence, the appellate court dismissed their complaints for lack of sufficient evidence. In the same Decision however, complainants Eddie Ladica, Arman Queling and Rolando Nieto were declared regular employees since they were the only ones subjected to cross-examination. Thus -

x x x (T)he labor arbiter conducted clarificatory hearings to ferret out the truth between the opposing claims of the parties thereto. He did not submit the case based on position papers and their accompanying documentary evidence as a full-blown trial was imperative to establish the parties' claims. As their allegations were poles apart, it was necessary to give them ample opportunity to rebut each other's

statements through cross-examination. In fact, private respondents Ladica, Quelling and Nieto were subjected to rigid cross-examination by petitioner's counsel. However, the testimonies of private respondents Romero, Espina, and Bantolino were not subjected to cross-examination, as should have been the case, and no explanation was offered by them or by the labor arbiter as to why this was dispensed with. Since they were represented by counsel, the latter should have taken steps so as not to squander their testimonies. But nothing was done by their counsel to that effect. Petitioners argue that the Court of Appeals should not have given weight to respondent's claim of failure to cross-examine them. They insist that, unlike regular courts, labor cases are decided based merely on the parties' position papers and affidavits in support of their allegations and subsequent pleadings that may be filed thereto. As such, according to petitioners, the Rules of Court should not be strictly applied in this case specifically by putting them on the witness stand to be cross-examined because the NLRC has its own rules of procedure which were applied by the Labor Arbiter in coming up with a decision in their favor. In its disavowal of liability, respondent commented that since the other alleged affiants were not presented in court to affirm their statements, much less to be cross-examined, their affidavits should, as the Court of Appeals rightly held, be stricken off the records for being self-serving, hearsay and inadmissible in evidence. ISSUE: Whether or not it is proper to give evidentiary value to the affidavits despite the failure of the affiants to affirm their contents and undergo the test of cross-examination. RULING: The petition is impressed with merit. The issue confronting the Court is not without precedent in jurisprudence. The oft-cited case of Rabago v. NLRC squarely grapples a similar challenge involving the propriety of the use of affidavits without the presentation of affiants for cross-examination. In that case, we held that "the argument that the affidavit is hearsay because the affiants were not presented for cross-

examination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only." To reiterate, administrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only stringent application, i.e., by analogy or in a suppletory character and effect. The submission by respondent, citing People v. Sorrel, that an affidavit not testified to in a trial, is mere hearsay evidence and has no real evidentiary value, cannot find relevance in the present case considering that a criminal prosecution requires a quantum of evidence different from that of an administrative proceeding. Under the Rules of the Commission, the Labor Arbiter is given the discretion to determine the necessity of a formal trial or hearing. Hence, trial-type hearings are not even required as the cases may be decided based on verified position papers, with supporting documents and their affidavits.

FIRST LEPANTO CERAMICS, INC., vs. THE COURT OF APPEALS and MARIWASA MANUFACTURING, INC., G.R. No. 110571 FACTS: A thorough scrutiny of the conflicting provisions of Batas Pambansa Bilang 129, otherwise known as the "Judiciary Reorganization Act of 1980," Executive Order No. 226, also known as the Omnibus Investments Code of 1987 and Supreme Court Circular No. 1-91 is, thus, called for. BOI, in its decision dated December 10, 1992 in BOI Case No. 92-005 granted petitioner First Lepanto Ceramics, Inc.'s application to amend its BOI certificate of registration by changing the scope of its registered product from "glazed floor tiles" to "ceramic tiles." Eventually, oppositor Mariwasa filed a motion for reconsideration of the said BOI decision while oppositor Fil-Hispano Ceramics, Inc. did not move to reconsider the same nor appeal therefrom. Soon rebuffed in its bid for reconsideration, Mariwasa filed a petition for review with respondent Court of Appeals pursuant to Circular 1-91. Acting on the petition, respondent court required the BOI and petitioner to comment on Mariwasa's petition and to show cause why no injunction should issue. On February 17, 1993, respondent court temporarily restrained the BOI from implementing its decision. This temporary restraining order lapsed by its own terms on March 9, 1993, twenty (20) days after its issuance, without respondent court issuing any preliminary injunction. On February 24, 1993, petitioner filed a "Motion to Dismiss Petition and to Lift Restraining Order" on the ground that respondent court has no appellate jurisdiction over BOI Case No. 92-005, the same being exclusively vested with the Supreme Court pursuant to Article 82 of the Omnibus Investments Code of 1987. On May 25, 1993, respondent court denied petitioner's motion to dismiss. Petitioner filed a petition for certiorari and prohibition before this Court.

Petitioner posits the view that respondent court acted without or in excess of its jurisdiction in issuing the questioned resolution of May 25, 1993, for the following reasons: I. Respondent court has no jurisdiction to entertain Mariwasa's appeal from the BOI's decision in BOI Case No. 92-005, which has become final. II. The appellate jurisdiction conferred by statute upon this Honorable Court cannot be amended or superseded by Circular No. 1-91. Petitioner then concludes that: III. Mariwasa has lost it right to appeal . . . in this case. Petitioner argues that the Judiciary Reorganization Act of 1980 or Batas Pambansa Bilang 129 and Circular 1-91, "Prescribing the Rules Governing Appeals to the Court of Appeals from a Final Order or Decision of the Court of Tax Appeals and Quasi-Judicial Agencies" cannot be the basis of Mariwasa's appeal to respondent court because the procedure for appeal laid down therein runs contrary to Article 82 of E.O. 226, which provides that appeals from decisions or orders of the BOI shall be filed directly with this Court. On the other hand, Mariwasa maintains that whatever "obvious inconsistency" or "irreconcilable repugnancy" there may have been between B.P. 129 and Article 82 of E.O. 226 on the question of venue for appeal has already been resolved by Circular 1-91 of the Supreme Court, which was promulgated on February 27, 1991 or four (4) years after E.O. 226 was enacted. Sections 1, 2 and 3 of Circular 1-91, is herein quoted below: 1. Scope. — These rules shall apply to appeals from final orders or decisions of the Court of Tax Appeals. They shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now allowed by statute to the Court of Appeals or the Supreme Court. Among these agencies are the Securities and Exchange Commission, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National

Telecommunications Commission, Secretary of Agrarian Reform and Special Agrarian Courts under RA 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission and Philippine Atomic Energy Commission. 2. Cases not covered. — These rules shall not apply to decisions and interlocutory orders of the National Labor Relations Commission or the Secretary of Labor and Employment under the Labor Code of the Philippines, the Central Board of Assessment Appeals, and other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute. 3. Who may appeal and where to appeal. — The appeal of a party affected by a final order, decision, or judgment of the Court of Tax Appeals or of a quasi-judicial agency shall be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact or of law or mixed questions of fact and law. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to the Supreme Court as provided in Rule 45 of the Rules of Court. It may be called that Section 9(3) of B.P. 129 vests appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of quasi-judicial agencies on the Court of Appeals, to wit: (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. The Intermediate Appellate Court shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals. ISSUE:

Where and in what manner appeals from decisions of the Board of Investments (BOI) should be filed. RULING: The Court, pursuant to its Constitutional power under Section 5(5), Article VIII of the 1987 Constitution to promulgate rules concerning pleading, practice and procedure in all courts, and by way of implementation of B.P. 129, issued Circular 1-91 prescribing the rules governing appeals to the Court of Appeals from final orders or decisions of the Court of Tax Appeals and quasi-judicial agencies to eliminate unnecessary contradictions and confusing rules of procedure. Contrary to petitioner's contention, although a circular is not strictly a statute or law, it has, however, the force and effect of law according to settled jurisprudence. The argument that Article 82 of E.O. 226 cannot be validly repealed by Circular 1-91 because the former grants a substantive right which, under the Constitution cannot be modified, diminished or increased by this Court in the exercise of its rule-making powers is not entirely defensible as it seems. Respondent correctly argued that Article 82 of E.O. 226 grants the right of appeal from decisions or final orders of the BOI and in granting such right, it also provided where and in what manner such appeal can be brought. These latter portions simply deal with procedural aspects which this Court has the power to regulate by virtue of its constitutional rule-making powers. The case of Bustos v. Lucero 11 distinguished between rights created by a substantive law and those arising from procedural law: Substantive law creates substantive rights . . . . Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations (60 C.J., 980). Substantive law is that part of the law which creates, defines and regulates rights, or which regulates rights and duties which give rise to a cause of action, as oppossed to adjective or remedial law, which prescribes the method of enforcing rights or obtains a redress for their invasion.

Indeed, the question of where and in what manner appeals from decisions of the BOI should be brought pertains only to procedure or the method of enforcing the substantive right to appeal granted by E.O. 226. In other words, the right to appeal from decisions or final orders of the BOI under E.O. 226 remains and continues to be respected. Circular 1-91 simply transferred the venue of appeals from decisions of this agency to respondent Court of Appeals and provided a different period of appeal, i.e., fifteen (15) days from notice. It did not make an incursion into the substantive right to appeal. The fact that BOI is not expressly included in the list of quasi-judicial agencies found in the third sentence of Section 1 of Circular 1-91 does not mean that said circular does not apply to appeals from final orders or decision of the BOI. The second sentence of Section 1 thereof expressly states that "(T)hey shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now allowed by statute to the Court of Appeals or the Supreme Court." E.O. 266 is one such statute. Besides, the enumeration is preceded by the words "(A)mong these agencies are . . . ," strongly implying that there are other quasi-judicial agencies which are covered by the Circular but which have not been expressly listed therein. More importantly, BOI does not fall within the purview of the exclusions listed in Section 2 of the circular. Only the following final decisions and interlocutory orders are expressly excluded from the circular, namely, those of: (1) the National Labor Relations Commission; (2) the Secretary of Labor and Employment; (3) the Central Board of Assessment Appeals and (4) other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute. Since in DBP v. CA 13 we upheld the appellate jurisdiction of the Court of Appeals over the Court of Tax Appeals despite the fact that the same is not among the agencies reorganized by B.P. 129, on the ground that B.P. 129 is broad and comprehensive, there is no reason why BOI should be excluded from Circular 1-91, which is but implementary of said law. Clearly, Circular 1-91 effectively repealed or superseded Article 82 of E.O. 226 insofar as the manner and method of enforcing the right to appeal from decisions of the BOI are concerned. Appeals from decisions of the BOI, which by statute was previously allowed to be

filed directly with the Supreme Court, should now be brought to the Court of Appeals.

ANITA VILLA vs. MANUEL LAZARO, as Presidential Assistant for Legal Affairs, Office of the President, and the HUMAN SETTLEMENTS REGULATORY COMMISSION G.R. No. 69871 FACTS: On January 18, 1980, Anita Villa was granted a building permit to construct a funeral parlor at Santiago Boulevard in Gen. Santos City. The permit was issued by the City Engineer after the application was "processed by Engineer Dominador Solana of the City Engineer's Office, and on the strength of the Certification of Manuel Sales, City Planning and Development Coordinator that the "project was in consonance with the Land Use Plan of the City and within the full provision of the Zoning Ordinance". With financing obtained from the Development Bank of the Philippines, Villa commenced construction of the building. In October of that same year, as the funeral parlor was nearing completion, a suit for injunction was brought against Villa by Dr. Jesus Veneracion, the owner of St. Elizabeth Hospital, standing about 132.36 meters from the funeral parlor. The complaint sought the perpetual enjoinment of the construction because allegedly violative of the Zoning Ordinance of General Santos City. A status quo order was issued. After appropriate proceedings and trial, judgment on the merits was rendered on November 17, 1981, dismissing Veneracion's complaint as well as the counterclaim pleaded by Villa. The Trial Court found that there was a falsified Zoning Ordinance, containing a provision governing funeral parlors, which had been submitted to and ratified by the Ministry of Human Settlements, but that ordinance had never been passed by the Sangguniang Panlungsod and that the genuine Zoning Ordinance of General Santos City contained no prohibition whatever relative to such parlors' "distance from hospitals, whether public or private". Villa then resumed construction of her building and completed it. Veneracion did not appeal from this adverse judgment which therefore

became final. Instead, he brought the matter up with the Human Settlements Regulatory Commission. He lodged a complaint with that commission praying "that the funeral parlor be relocated because it was near the St. Elizabeth Hospital and Villa failed to secure the necessary locational clearance". The complaint, as will at once be noted, is substantially the same as that filed by him with the Court of First Instance and dismissed after trial. Furthermore, neither he nor the Commission, as will hereafter be narrated, ever made known this second complaint to Villa until much, much later, after the respondent Commission had rendered several adverse rulings to her. Two months after the rendition of the judgment against Veneracion, or more precisely on January 22, 1982, Villa received a telegram dated January 21 from Commissioner Raymundo R. Dizon of the Human Settlements Regulatory Commission reading as follows: THE HUMAN SETTLEMENT REGULATORY COMMISSION REQUEST TRANSMITTAL OF PROOF OF LOCATIONAL CLEARANCE GRANTED BY THIS OFFICE IMMEDIATELY UPON RECEIPT OF THIS . . NOT LATER THAN 21ST JANUARY 1982 REGARDING YOUR ON GOING CONSTRUCTION OF A FUNERAL PARLOR AT SANTIAGO STREET CORNER NATIONAL HIGHWAY GENERAL SANTOS CITY AN OFFICIAL COMMUNICATION TO THE EFFECT FOLLOWS. On the same day, January 22, 1982, Villa sent Dizon a reply telegram reading: "LOCATIONAL CLEARANCE BASED ON CERTIFICATION OF CITY PLANNING AND DEVELOPMENT COORDINATOR AND HUMAN SETTLEMENT OFFICER, COPIES MAIL . . ." On February 8, 1982 Villa received what was evidently the official communication" referred to in Commissioner Dizon's telegram of January 21, 1982, supra, an "Order to Present Proof of Locational Clearance" dated January 20, 1982. Knowing this and "considering also that she . . (had) already sent the (required) locational clearance on January 27, 1982," Villa made no response. No doubt with no little discomfiture Villa received on June 2, 1982 a "Show Cause" Order dated April 28,1982, signed by one Ernesto L. Mendiola in behalf of the Commission, requiring her to show cause

why a fine should not be imposed on her or a cease-and-desist order issued against her for her failure to show proof of locational clearance. The order made no reference whatever to the documents she had already sent by registered mail as early as January 27, 1982. The following day Villa sent a telegram to Commissioner Dizon reading as follows: LOCATIONAL CLEARANCE WAS MAILED THRU REGISTERED MAIL REGISTRY RECEIPT NUMBER 1227 DATED JANUARY 27, 1982, SENDING AGAIN THRU REGISTERED MAIL REGISTRY RECEIPT NO. 6899 JUNE 3, 1982. On July 27, 1982, she received an Order of Commissioner Dizon dated June 29, 1982 imposing on her a fine of P10,000.00 and requiring her to cease operations until further orders from his office. The order made no mention of the documents she had transmitted by registered mail on January 27, 1982 and June 3, 1982, or to her telegrams on the matter. Villa forthwith went to see the Deputized Zoning Administrator of General Santos City, Isidro M. Olmedo. The latter issued to her a "CERTIFICATE OF ZONING COMPLIANCE" No. 0087, dated July 28,1982, inter alia attesting that the land on which Villa's "proposed commercial building" was located in a vicinity in which the "dominant land uses" were "commercial/institutional/residential," and the project conformed "WITH THE LAND USE PLAN OF THE CITY." This certificate Villa sent on the same day to Commissioner Dizon by registered mail (Reg. Receipt No. 1365 [Gen. Santos City P.O.]). 19 It is noteworthy that this Certificate No. 0087 is entirely consistent with the earlier certification dated November 27, 1979 of City Planning & Development Coordinator Sales that Villa's funeral chapel was "in consonance with the Land Use Plan of the City and within the full provision of the Zoning Ordinance," supra, 20 and that of Human Settlements Officer Alaba dated October 24, 1980, supra 21 that Villa's "application for a Funeral Parlor . . passed the criteria of this office for this purpose." Villa could perhaps be understandably considered justified in believing, at this time, that the matter had finally been laid to rest. One can then only imagine her consternation and shock when she was

served on November 16, 1982 with a writ of execution signed by Commissioner Dizon under the date of October 19, 1982 in implementation of his Order of June 29, 1982, above mentioned, imposing a fine of P10,000.00 on her. Again, this Order, like the others issuing from respondent Commission, made no advertence whatever to the documents Villa had already sent to respondent Commission by registered mail on January 27, June 29, and July 28, 1982, or her telegrams Be this as it may, she lost no time in moving for reconsideration, by letter dated November 22, 1982 to which she attached copies of the documents she had earlier sent to Commissioner Dizon, viz.: her telegram of January 22, 1982, 22 (2) the certification of the City Planning & Development Coordinator 23 (3) the certification of the Human Settlements Officer 24 (4) the telegram dated June 3, 1982, 25 and (5) the Certificate of Zoning Compliance dated July 28, 1982. 26 In addition, Villa executed a special power of attorney on December 10, 1982 authorizing Anastacio Basas to "deliver to the Human Settlements Regulatory Commission . . all my papers or documents required by the said Commission as requisites for the issuance to me and/or the Funeraria Villa . . (of) the locational clearance for the construction of my funeral parlor along Santiago boulevard, General Santos City. . . 27 pursuant to which on December 15, 1982, said Basas delivered to the Commission (Enforcement Office), thru one Betty Jimenez 28 copies of Villa's (1) building plan, (2) building permit, 29 (3) occupancy permit, 30 and (4) "the decision of the Court case involving the funeral parlor". 31 By Order dated January 21, 1983, Commissioner Dizon denied the reconsideration prayed for by Villa in her letter of November 22, 1982, opining that the plea for reconsideration had been presented out of time, 32 and the order of June 29, 1982 had become final and executory. 33 Villa then filed an appeal with "the Commission Proper, which denied it in an order dated September 7, 1983, also on account of the finality of the order of the Commissioner for Enforcement. Her subsequent motion for reconsideration . . (was also) denied in the order of June 7, 1984 . . 34 Villa then sought to take an appeal to the Office of the President. The

matter was acted on by the Presidential Assistant for Legal Affairs, respondent Manuel M. Lazaro. In a Resolution dated September 21, 1984, respondent Lazaro denied the "appeal and (Villa's) motion for extension of time to submit an appeal memorandum". 35 It is noteworthy that Lazaro's resolution, like the orders of Commissioner Dizon and respondent Commission, contains no reference whatsoever to the telegrams and documents sent by Villa to the latter on various occasions evidencing her prompt responses to the orders of Dizon and the Commission, and her substantial compliance with the general requirement for her to present the requisite clearances or documents of authority for the erection of her funeral parlor. The very skimpy narration of facts set out in the resolution limits itself merely to a citation of the orders of Commissioner Dizon and the Commission; and on that basis, the resolution simplistically concludes that "no appeal was seasonably taken by Mrs. Anita Villa from the order of June 29, 1982, of the HSRC . . (and) (a)ccordingly, said order became final for which reason a writ of execution was issued . . (which) finality was confirmed in the subsequent orders of HSRC, dated January 21, 1983, and September 7, 1983." Villa filed a motion for reconsideration dated October 19, 1984, this time through counsel, contending that the resolution of September 21, 1984 was "not in conformity with the law and the evidence" and deprived her of due process of law. 36 But this, too, was denied (with finality) by respondent Lazaro, in a Resolution dated December 14, 1984 which again omitted to refer to the several attempts of Villa to comply with the order of Commissioner Dizon to present the requisite documents of authority anent her funeral parlor and adverted merely to the orders emanating from Dizon and the respondent Commission. ISSUE: Whether or not Villa was denied due process against which the defense of failure of Villa to take timely appeal will not avail. RULING: There is no question that Dr. Jesus Veneracion had resorted to the proscribed practice of forum-shopping when, following adverse judgment of the Court of First Instance in his suit to enjoin the construction of Villa's funeral parlor, he had, instead of appealing that judgment, lodged a complaint with the respondent Commission on

substantially the same ground litigated in the action. Also undisputed is that while the respondent Commission took cognizance of the complaint and by telegram required Villa to submit a locational clearance, said respondent did not then or at any time before issuance of the order and writ of execution complained of bother to put her on notice, formally or otherwise, of Veneracion's complaint. It was therefore wholly natural for Villa to assume, as it is apparent she did, that no formal adversarial inquiry was underway and that the telegram was what it purported to be on its face: a routinary request, issued motu proprio, to submit proof of compliance with locational requirements. And such assumption was doubtless fortified by petitioner's knowledge that she already had in her favor a judgment on the subject against which her opponent had taken no recourse by appeal or otherwise. The mischief done by Commissioner Dizon's baffling failure (or obdurate refusal) even to acknowledge the existence of the documents furnished by petitioner was perpetuated by the "Commissioner proper" and respondent Lazaro (Presidential Assistant on Legal Affairs), who threw out petitioner's appeals with no reference whatsoever thereto and thereby kept in limbo evidence that would have been decisive. The Solicitor General's brief Comment of September 3, 1985 neither admits nor denies Villa's claim of having submitted the required documents; it avoids any reference thereto and deals mainly with the question of the timeliness of her appeal to the respondent Commission and the propriety of the present petition. From such silence and upon what the record otherwise clearly shows, the Court remains in no doubt of the verity of said petitioner's claim that she had more than once submitted those requisite documents. There was absolutely no excuse for initiating what is held out as an administrative proceeding against Villa without informing her of the complaint which initiated the case; for conducting that inquiry in the most informal manner by means only of communications requiring submission of certain documents, which left the impression that compliance was all that was expected of her and with which directives she promptly and religiously complied; assuming that one of the documents thus successively submitted had been received, but given the fact that on at least two occasions, their transmission had been

preceded by telegrams announcing that they would follow by mail, for failing to call Villa's attention to their non-receipt or to make any other attempt to trace their whereabouts; for ruling against Villa on the spurious premise that she had failed to submit the documents required; and for maintaining to the very end that pretense of lack of compliance even after being presented with a fourth set of documents and the decision in the court case upholding her right to operate her funeral parlor in its questioned location. Whether born of ineptitude negligence, bias or malice, such lapses are indefensible. No excuse can be advanced for avoiding all mention or consideration of certifications issued by respondent Commission's own officials in General Santos City, which included the very relevant one executed by Human Settlements Officer Josefina E. Alaba that petitioner's application for a funeral parlor at the questioned location had . . passed the criteria of this office for this purpose. 39 It was thus not even necessary for petitioner to bring that document to the notice of the Commission which, together with Commissioner Dizon, was chargeable with knowledge of its own workings and of all acts done in the performance of duty by its officials and employees. Petitioner is plainly the victim of either gross ignorance or negligence or abuse of power, or a combination of both. All of the foregoing translate to a denial of due process against which the defense of failure to take timely appeal will not avail. Well-esconced in our jurisprudence is the rule: . . that administrative proceedings are not exempt from the operation of certain basic and fundamental procedural principles, such as the due process requirements in investigations and trials. And this administrative due process is recognized to include (a) the right to notice, be it actual or constructive, of the institution of the proceedings that may affect a person's legal right; (b) reasonable opportunity to appear and defend his rights, introduce witnesses and relevant evidence in his favor, (c) a tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction; and (d) a finding or decision by that tribunal supported by substantial evidence presented at the hearing, or at least contained in the records or disclosed to the parties affected. 40 and, it being clear that some, at least, of those essential elements did not obtain or were not present in the proceedings complained of, any

judgment rendered, or order issued, therein was null and void, could never become final, and could be attacked in any appropriate proceeding. The Court finds no merit in the proposition that relief is foreclosed to Villa because her motion for reconsideration of November 22, 1982 was filed out of time. The very informal character of the so-called administrative proceedings, an informality for which Commissioner Dizon himself was responsible and which he never sought to rectify, militates against imposing strict observance of the limiting periods applicable to proceedings otherwise properly initiated and regularly conducted. Indeed, considering the rather "off-the-cuff" manner in which the inquiry was carried out, it is not even certain that said petitioner is chargeable with tardiness in connection with any incident thereof. What the record shows is that she invariably responded promptly, at times within a day or two of receiving them, to orders of communications sent to her. At any rate, the Court will not permit the result of an administrative proceeding riddled with the serious defects already pointed out to negate an earlier judgment on the merits on the same matter regularly rendered by competent court.

UTE PATEROK vs. BUREAU OF CUSTOMS and HON. SALVADOR N. MISON G.R. Nos. 90660-61 FACTS: In March 1986, the petitioner shipped from Germany to the Philippines two (2) containers, one with used household goods and the other with two (2) used automobiles (one Bourgetti and one Mercedes Benz 450 SLC). The first container was released by the Bureau of Customs and later on, the Bourgetti car, too. The Mercedes Benz, however, remained under the custody of the said Bureau. In December 1987, after earnest efforts to secure the release of the said Mercedes Benz, the petitioner received a notice of hearing from the legal officer of the Manila International Container Port, Bureau of Customs informing the former that seizure proceedings were being initiated against the said Mercedes Benz for violation of Batas Pambansa Blg. 73 in relation to Section 2530(F) of the Tariff and Customs Code of the Philippines (TCCP), as amended, and Central Bank Circular (CBC) 1069. While the said case was pending, the petitioner received only on April, 1988, a letter informing her that a decision ordering the forfeiture of her Mercedes Benz had been rendered on December 16, 1986 by the District Collector of Customs. The petitioner had not been informed that a separate seizure case was filed on the same Mercedes Benz in question before the said District Collector, an office likewise under the Bureau of Customs. The petitioner later found out that on November 13, 1986, a Notice of Hearing set on December 2, 1986, concerning the said Mercedes Benz, was posted on the bulletin board of the Bureau of Customs at Port Area, Manila. The petitioner, thereafter, filed a motion for new trial 5 before the Collector of Customs, Port of Manila, but the latter, in an order 6 dated May 30, 1988, denied the same, invoking the failure of the former to appear in the said hearing despite the posting of the notice on the

bulletin board. Moreover, the Collector of Customs contended that a reopening of the case was an exercise in futility considering that the forfeited property, a Mercedes Benz 450 SLC, had an engine displacement of more than 2800 cubic centimeters and therefore was under the category of prohibited importation pursuant to B.P. Blg. 73. Subsequently, the petitioner filed a petition for review 7 with the Department of Finance, which petition the latter referred to the public respondent. The petitioner likewise addressed a letter 8 to the Hon. Cancio Garcia, the Assistant Executive Secretary for Legal Affairs, Office of the President, Malacañang, requesting the latter's assistance for a speedy resolution of the said petition. Finally, the public respondent rendered a decision on September 22, 1989 affirming the previous order of the Collector of Customs for the Forfeiture of the Mercedes Benz in question in favor of the government. ISSUE: Whether or not a notice of hearing posted in the bulletin board is sufficient notice RULING: We agree with the petitioner that a notice of hearing posted on the bulletin board of the public respondent in a forfeiture proceeding where the owner of the alleged prohibited article is known does not constitute sufficient compliance with proper service of notice and procedural due process. Time and again, the Court has emphasized the imperative necessity for administrative agencies to observe the elementary rules of due process. And no rule is better established under the due process clause of the Constitution than that which requires notice and opportunity to be heard before any person can be lawfully deprived of his rights. In the present case, although there was a notice of hearing posted on the bulletin board, the said procedure is premised on the ground that

the party or owner of the property in question is unknown. This is clear from the provisions of the TCCP relied upon by the public respondent, namely, Sections 2304 and 2306, captioned "Notification of Unknown Owner and "Proceedings in Case of Property Belonging to Unknown Parties," respectively, wherein the posting of the notice of hearing on the bulletin board is specifically allowed. But in the case at bar, the facts evidently show that the petitioner could not have been unknown. The petitioner had previous transactions with the Bureau of Customs and in fact, the latter had earlier released the first container consisting of household goods and the Bourgetti car to the former at her address (as stated in the Bill of Lading). Moreover, there was a similar seizure case that had been instituted by the Manila International Container Port, docketed as S.I. No. 86-224, covering the same Mercedes Benz in question and involving the same owner, the petitioner herein. If only the public respondents had exercised some reasonable diligence to ascertain from their own records the identity and address of the petitioner as the owner and the consignee of the property in question, the necessary information could have been easily obtained which would have assured the sending of the notice of hearing properly and legally. Then, the petitioner would have been afforded the opportunity to be heard and to present her defense which is the essence of procedural due process. But the public respondent regrettably failed to perform such basic duty. Notwithstanding the procedural infirmity aforementioned, for which the Court expresses its rebuke, the petition nonetheless can not be granted. (because prohibited…)

ARSENIO P. LUMIQUED (deceased) vs. Honorable APOLONIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL Members of Investigating Committee, created by DOJ Order No. 145 on May 30, 1992; HON. FRANKLIN M. DRILON, SECRETARY OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF Presidential Legal Adviser/Counsel; and HON. LEONARDO A. QUISUMBING, Senior Deputy Executive Secretary of the Office of the President, and JEANNETTE OBAR-ZAMUDIO, Private Respondent G.R. No. 117565 FACTS: Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian Reform — Cordillera Autonomous Region (DAR-CAR) until President Fidel V. Ramos dismissed him from that position. In view of Lumiqued's death on May 19, 1994, his heirs instituted this petition for certiorari and mandamus, questioning such order. The dismissal was the aftermath of three complaints filed by DAR-CAR Regional Cashier and private respondent Jeannette Obar-Zamudio with the Board of Discipline of the DAR. The first affidavit-complaint dated November 16, 1989, charged Lumiqued with malversation through falsification of official documents. From May to September 1989, Lumiqued allegedly committed at least 93 counts of falsification by padding gasoline receipts. He even submitted a vulcanizing shop receipt worth P550.00 for gasoline bought from the shop, and another receipt for P660.00 for a single vulcanizing job. With the use of falsified receipts, Lumiqued claimed and was reimbursed the sum of P44,172.46. Private respondent added that Lumiqued seldom made field trips and preferred to stay in the office, making it impossible for him to consume the nearly 120 liters of gasoline he claimed everyday. In her second affidavit-complaint dated November 22, 1989, private respondent accused Lumiqued with violation of Commission on Audit (COA) rules and regulations, alleging that during the months of April, May, July, August, September and October, 1989, he made unliquidated cash advances in the total amount of P116,000.00.

Lumiqued purportedly defrauded the government "by deliberately concealing his unliquidated cash advances through the falsification of accounting entries in order not to reflect on 'Cash advances of other officials' under code 8-70-600 of accounting rules." The third affidavit-complaint dated December 15, 1989, charged Lumiqued with oppression and harassment. According to private respondent, her two previous complaints prompted Lumiqued to retaliate by relieving her from her post as Regional Cashier without just cause. The three affidavit-complaints were referred in due course to the Department of Justice (DOJ) for appropriate action. On May 20, 1992, Acting Justice Secretary Eduardo G. Montenegro issued Department Order No. 145 creating a committee to investigate the complaints against Lumiqued. The order appointed Regional State Prosecutor Apolinario Exevea as committee chairman with City Prosecutor Erdolfo Balajadia and Provincial Prosecutor Felix Cabading as members. They were mandated to conduct an investigation within thirty days from receipt of the order, and to submit their report and recommendation within fifteen days from its conclusion. The investigating committee accordingly issued a subpoena directing Lumiqued to submit his counter-affidavit on or before June 17, 1992. Lumiqued, however, filed instead an urgent motion to defer submission of his counter-affidavit pending actual receipt of two of private respondent's complaints. The committee granted the motion and gave him a five-day extension. In his counter-affidavit dated June 23, 1992, Lumiqued alleged, inter alia, that the cases were filed against him to extort money from innocent public servants like him, and were initiated by private respondent in connivance with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He claimed that the apparent weakness of the charge was bolstered by private respondent's execution of an affidavit of desistance. Lumiqued admitted that his average daily gasoline consumption was 108.45 liters. He submitted, however, that such consumption was

warranted as it was the aggregate consumption of the five service vehicles issued under his name and intended for the use of the Office of the Regional Director of the DAR. He added that the receipts which were issued beyond his region were made in the course of his travels to Ifugao Province, the DAR Central Office in Diliman, Quezon City, and Laguna, where he attended a seminar. Because these receipts were merely turned over to him by drivers for reimbursement, it was not his obligation but that of auditors and accountants to determine whether they were falsified. He affixed his signature on the receipts only to signify that the same were validly issued by the establishments concerned in order that official transactions of the DAR-CAR could be carried out. Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said that he and his companions were cruising along Santa Fe, Nueva Vizcaya on their way to Ifugao when their service vehicle ran out of gas. Since it was almost midnight, they sought the help of the owner of a vulcanizing shop who readily furnished them with the gasoline they needed. The vulcanizing shop issued its own receipt so that they could reimburse the cost of the gasoline. Domingo Lucero, the owner of said vulcanizing shop, corroborated this explanation in an affidavit dated June 25, 1990. With respect to the accusation that he sought reimbursement in the amount of P660.00 for one vulcanizing job, Lumiqued submitted that the amount was actually only P6.60. Any error committed in posting the amount in the books of the Regional Office was not his personal error or accountability. To refute private respondent's allegation that he violated COA rules and regulations in incurring unliquidated cash advances in the amount of P116,000.00, Lumiqued presented a certification of DAR-CAR Administrative Officer Deogracias F. Almora that he had no outstanding cash advances on record as of December 31, 1989. In disputing the charges of oppression and harassment against him, Lumiqued contended that private respondent was not terminated from the service but was merely relieved of her duties due to her prolonged absences. While admitting that private respondent filed the required applications for leave of absence, Lumiqued claimed that the exigency of the service necessitated disapproval of her application for leave of

absence. He allegedly rejected her second application for leave of absence in view of her failure to file the same immediately with the head office or upon her return to work. He also asserted that no medical certificate supported her application for leave of absence. In the same counter-affidavit, Lumiqued also claimed that private respondent was corrupt and dishonest because a COA examination revealed that her cash accountabilities from June 22 to November 23, 1989, were short by P30,406.87. Although private respondent immediately returned the amount on January 18, 1990, the day following the completion of the cash examination, Lumiqued asserted that she should be relieved from her duties and assigned to jobs that would not require handling of cash and money matters. Committee hearings on the complaints were conducted on July 3 and 10, 1992, but Lumiqued was not assisted by counsel. On the second hearing date, he moved for its resetting to July 17, 1992, to enable him to employ the services of counsel. The committee granted the motion, but neither Lumiqued nor his counsel appeared on the date he himself had chosen, so the committee deemed the case submitted for resolution. On August 12, 1992, Lumiqued filed an urgent motion for additional hearing, alleging that he suffered a stroke on July 10, 1992. The motion was forwarded to the Office of the State Prosecutor apparently because the investigation had already been terminated. In an order dated September 7, 1992, 9 State Prosecutor Zoila C. Montero denied the motion, viz: The medical certificate given show(s) that respondent was discharged from the Sacred Heart Hospital on July 17, 1992, the date of the hearing, which date was upon the request of respondent (Lumiqued). The records do not disclose that respondent advised the Investigating committee of his confinement and inability to attend despite his discharge, either by himself or thru counsel. The records likewise do not show that efforts were exerted to notify the Committee of respondent's condition on any reasonable date after July 17, 1992. It is herein noted that as early as June 23, 1992, respondent was already being assisted by counsel.

Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency, completeness and thoroughness of the counter-affidavit together with the documentary evidence annexed thereto, such that a judicious determination of the case based on the pleadings submitted is already possible. Moreover, considering that the complaint-affidavit was filed as far back as November 16, 1989 yet, justice can not be delayed much longer. Following the conclusion of the hearings, the investigating committee rendered a report dated July 31, 1992, 10 finding Lumiqued liable for all the charges against him. Accordingly, the investigating committee recommended Lumiqued's dismissal or removal from office, without prejudice to the filing of the appropriate criminal charges against him. Acting on the report and recommendation, former Justice Secretary Franklin M. Drilon adopted the same in his Memorandum to President Fidel V. Ramos dated October 22, 1992. He added that the filing of the affidavit of desistance 11 would not prevent the issuance of a resolution on the matter considering that what was at stake was not only "the violation of complainant's (herein private respondent's) personal rights" but also "the competence and fitness of the respondent (Lumiqued) to remain in public office." He opined that, in fact, the evidence on record could call for "a punitive action against the respondent on the initiative of the DAR." On December 17, 1992, Lumiqued filed a motion for reconsideration of "the findings of the Committee" with the DOJ. 12 Undersecretary Ramon S. Esguerra indorsed the motion to the investigating committee. 13 In a letter dated April 1, 1993, the three-member investigating committee informed Undersecretary Esguerra that the committee "had no more authority to act on the same (motion for reconsideration) considering that the matter has already been forwarded to the Office of the President" and that their authority under Department Order No. 145 ceased when they transmitted their report to the DOJ. Concurring with this view, Undersecretary Esguerra

informed Lumiqued that the investigating committee could no longer act on his motion for reconsideration. He added that the motion was also prematurely filed because the Office of the President (OP) had yet to act on Secretary Drilon's recommendation. On May 12, 1993, President Fidel V. Ramos himself issued Administrative Order No. 52 (A.O. No. 52), 16 finding Lumiqued administratively liable for dishonesty in the alteration of fifteen gasoline receipts, and dismissing him from the service, with forfeiture of his retirement and other benefits. This Office is not about to shift the blame for all these to the drivers employed by the DAR-CAR as respondent would want us to do. The OP, however, found that the charges of oppression and harassment, as well as that of incurring unliquidated cash advances, were not satisfactorily established. In a "petition for appeal" 17 addressed to President Ramos, Lumiqued prayed that A.O. No. 52 be reconsidered and that he be reinstated to his former position "with all the benefits accorded to him by law and existing rules and regulations." This petition was basically premised on the affidavit dated May 27, 1993, of a certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to having authored the falsification of gasoline receipts and attested to petitioner Lumiqued's being an "honest man" who had no "premonition" that the receipts he (Dwight) turned over to him were "altered." 18 Treating the "petition for appeal" as a motion for reconsideration of A.O. No. 52, the OP, through Senior Deputy Executive Secretary Leonardo A. Quisumbing, denied the same on August 31, 1993. Undaunted, Lumiqued filed a second motion for reconsideration, alleging, among other things, that he was denied the constitutional right to counsel during the hearing. 19 On May 19, 1994, 20 however, before his motion could be resolved, Lumiqued died. On September 28, 1994, 21 Secretary Quisumbing denied the second motion for reconsideration for lack of merit.

ISSUE: Does the due process clause encompass the right to be assisted by counsel during an administrative inquiry? RULING: Petitioners fault the investigating committee for its failure to inform Lumiqued of his right to counsel during the hearing. They maintain that his right to counsel could not be waived unless the waiver was in writing and in the presence of counsel. They assert that the committee should have suspended the hearing and granted Lumiqued a reasonable time within which to secure a counsel of his own. If suspension was not possible, the committee should have appointed a counsel de oficio to assist him. These arguments are untenable and misplaced. The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or an accused during custodial investigation. It is not an absolute right and may, thus, be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry. In the case at bar, petitioners invoke the right of an accused in criminal proceedings to have competent and independent counsel of his own choice. Lumiqued, however, was not accused of any crime in the proceedings below. The investigation conducted by the committee created by Department Order No. 145 was for the purpose of determining if he could be held administratively liable under the law for the complaints filed against him. As such, the hearing conducted by the investigating committee was not part of a criminal prosecution. This was even made more pronounced when, after finding Lumiqued administratively liable, it hinted at the filing of a criminal case for malversation through falsification of public documents in its report and recommendation. Petitioners' misconception on the nature of the investigation 25 conducted against Lumiqued appears to have been engendered by the fact that the DOJ conducted it. While it is true that under the

Administrative Code of 1987, the DOJ shall "administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system, 26 conducting criminal investigations is not its sole function. By its power to "perform such other functions as may be provided by law," 27 prosecutors may be called upon to conduct administrative investigations. Accordingly, the investigating committee created by Department Order No. 145 was duty-bound to conduct the administrative investigation in accordance with the rules therefor. 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 a body to furnish the person being investigated with counsel. 28 In an administrative proceeding such as the one that transpired below, a respondent (such as Lumiqued) 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 29 (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 30 (otherwise known as the Administrative Code of 1987). Excerpts from the transcript of stenographic notes of the hearings attended by Lumiqued 31 clearly show that he was confident of his capacity and so opted to represent himself . Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. Furthermore, petitioners' reliance on Resolution No. 94-0521 of the Civil Service Commission on the Uniform Procedure in the Conduct of Administrative Investigation stating that a respondent in an administrative complaint must be "informed of his right to the assistance of a counsel of his choice," 32 is inappropriate. In the first place, this resolution is applicable only to cases brought before the

Civil Service Commission. 33 Secondly, said resolution, which is dated January 25, 1994, took effect fifteen days following its publication in a newspaper of general circulation, 34 much later than the July 1992 hearings of the investigating committee created by Department Order No. 145. Thirdly, the same committee was not remiss in the matter of reminding Lumiqued of his right to counsel. Thus, at the July 3, 1992, hearing, Lumiqued was repeatedly appraised of his option to secure the services of counsel. The hearing was reset to July 17, 1992, the date when Lumiqued was released from the hospital. Prior to said date, however, Lumiqued did not inform the committee of his confinement. Consequently because the hearing could not push through on said date, and Lumiqued had already submitted his counter-affidavit, the committee decided to wind up the proceedings. This did not mean, however, that Lumiqued was short-changed in his right to due process. Lumiqued, a Regional Director of a major department in the executive branch of the government, graduated from the University of the Philippines (Los Baños) with the degree of Bachelor of Science major in Agriculture, was a recipient of various scholarships and grants, and underwent training seminars both here and abroad. 39 Hence, he could have defended himself if need be, without the help of counsel, if truth were on his side. This, apparently, was the thought he entertained during the hearings he was able to attend. In his statement, "That is my concern," one could detect that it had been uttered testily, if not exasperatedly, because of the doubt or skepticism implicit in the question, "You are confident that you will be able to represent yourself?" despite his having positively asserted earlier, "Yes, I am confident." He was obviously convinced that he could ably represent himself. Beyond repeatedly reminding him that he could avail himself of counsel and as often receiving the reply that he is confident of his ability to defend himself, the investigating committee could not do more. One can lead a horse to water but cannot make him drink. The right to counsel is not indispensable to due process unless required by the Constitution or the law. In administrative proceedings, the essence of due process is simply the

opportunity to explain one's side. One may be heard, not solely by verbal presentation but also, and perhaps even much more creditably as it is more practicable than oral arguments, through pleadings. 41 An actual hearing is not always an indispensable aspect of due process. 42 As long as a party was given the opportunity to defend his interests in due course; he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. 43 Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of. 44 Lumiqued's appeal and his subsequent filing of motions for reconsideration cured whatever irregularity attended the proceedings conducted by the committee. 45 The constitutional provision on due process safeguards life, liberty and property. 46 In the early case of Cornejo v. Gabriel and Provincial Board of Rizal 47 the Court held that a public office is not property within the sense of the constitutional guarantee of due process of law for it is a public trust or agency. This jurisprudential pronouncement has been enshrined in the 1987 Constitution under Article XI, Section 1, on accountability of public officers, as follows: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. When the dispute concerns one's constitutional right to security of tenure, however, public office is deemed analogous to property in a limited sense; hence, the right to due process could rightfully be invoked. Nonetheless, the right to security of tenure is not absolute. Of equal weight is the countervailing mandate of the Constitution that all public officers and employees must serve with responsibility, integrity, loyalty and efficiency. 48 In this case, it has been clearly shown that Lumiqued did not live up to this constitutional precept. The committee's findings pinning culpability for the charges of dishonesty and grave misconduct upon Lumiqued were not, as shown above, fraught with procedural mischief. Its conclusions were founded on the evidence presented and evaluated as facts. Well-settled in our jurisdiction is the doctrine that findings of fact of administrative

agencies must be respected as long as they are supported by substantial evidence, even if such evidence is not overwhelming or preponderant. The quantum of proof necessary for a finding of guilt in administrative cases is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consequently, the adoption by Secretary Drilon and the OP of the committee's recommendation of dismissal may not in any way be deemed tainted with arbitrariness amounting to grave abuse of discretion. Government officials are presumed to perform their functions with regularity. Strong evidence is not necessary to rebut that presumption, 51 which petitioners have not successfully disputed in the instant case. Dishonesty is a grave offense penalized by dismissal under Section 23 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987. Under Section 9 of the same Rule, the penalty of dismissal carries with it "cancellation of eligibility, forfeiture of leave credits and retirement benefits, and the disqualification for reemployment in the government service." The instant petition, which is aimed primarily at the "payment of retirement benefits and other benefits," plus back wages from the time of Lumiqued's dismissal until his demise, must, therefore, fail.

HAYDEE C. CASIMIRO vs. FILIPINO T. TANDOG G.R. No. 146137 FACTS: Petitioner Haydee Casimiro began her service in the government as assessment clerk in the Office of the Treasurer of San Jose, Romblon. In August 1983, she was appointed Municipal Assessor. On 04 September 1996, Administrative Officer II Nelson M. Andres, submitted a report2 based on an investigation he conducted into alleged irregularities in the office of petitioner Casimero. The report spoke of an anomalous cancellation of Tax Declarations No. 0236 in the name of Teodulo Matillano and the issuance of a new one in the name of petitioner’s brother Ulysses Cawaling and Tax Declarations No. 0380 and No. 0376 in the name of Antipas San Sebastian and the issuance of new ones in favor of petitioner’s brother-in-law Marcelo Molina.

Immediately thereafter, respondent Mayor Tandog issued Memorandum Order No. 133 dated 06 September 1996, placing the petitioner under preventive suspension for thirty (30) days. Three (3) days later, Mayor Tandog issued Memorandum Order No. 15, directing petitioner to answer the charge of irregularities in her office. In her answer,4 petitioner denied the alleged irregularities claiming, in essence, that the cancellation of the tax declaration in favor of her brother Ulysses Cawaling was done prior to her assumption to office as municipal assessor, and that she issued new tax declarations in favor of her brother-in-law Marcelo Molina by virtue of a deed of sale executed by Antipas San Sebastian in Molina’s favor.

On 28 October 1996, Memorandum Order No. 186 was issued by respondent Mayor directing petitioner to answer in writing the affidavit-complaint of Noraida San Sebastian Cesar and Teodulo Matillano. Noraida San Sebastian Cesar7 alleged that Tax Declarations No. 0380 and No. 0376 covering parcels of land owned by her parents were transferred in the name of a certain Marcelo Molina, petitioner’s brother-in-law, without the necessary documents. Noraida Cesar

further claimed that Marcelo Molina had not yet paid the full purchase price of the land covered by the said Tax Declarations. For his part, Teodulo Matillano claimed8 that he never executed a deed of absolute sale over the parcel of land covered by Tax Declaration No. 0236 in favor of Ulysses Cawaling, petitioner’s brother.

In response to Memorandum Order No. 18, petitioner submitted a letter9 dated 29 October 1996, stating that with respect to the complaint of Noraida San Sebastian Cesar, she had already explained her side in the letter dated 26 September 1996. As to the complaint of Teodulo Matillano, she alleged that it was a certain Lilia Barrientos who executed a deed of absolute sale over the parcel of land subject of the complaint in favor of her brother, Ulysses Cawaling.

Not satisfied, respondent Mayor created a fact-finding committee to investigate the matter. After a series of hearings, the committee, on 22 November 1996, submitted its report10 recommending petitioner’s separation from service, the dispositive portion of which reads:

Evaluating the facts above portrayed, it is clearly shown that Municipal Assessor Haydee Casimero is guilty of malperformance of duty and gross dishonesty to the prejudice of the taxpayers of San Jose, Romblon who are making possible the payments of her salary and other allowances. Consequently, we are unanimously recommending her separation from service.

Based on the above recommendation, respondent Mayor issued Administrative Order No. 111 dated 25 November 1996 dismissing petitioner.

petitioner appealed to the CSC, which affirmed12 respondent Mayor’s order of dismissal. A motion for reconsideration13 was filed, but the same was denied.14

Dissatisfied, petitioner elevated her case to the Court of Appeals, which subsequently affirmed the CSC decision.15 Her motion for reconsideration was likewise denied.

Hence this petition for review on certiorari to this Court. She avers that Lorna Tandog Vilasenor, a member of the fact-finding committee, is the sister of respondent Mayor. She further alludes that while the committee chairman, Nelson M. Andres, was appointed by the respondent Mayor to the position of Administrative Officer II only on 01 August 1996, no sooner was he given the chairmanship of the Committee. Further the affiants-complainants were not presented for cross examination. ISSUE: Whether or not petitioner was afforded procedural and substantive due process when she was terminated from her employment as Municipal Assessor of San Jose, Romblon. An underpinning query is: Was petitioner afforded an impartial and fair treatment?

HELD: The essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard. In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or ruling complained of.19 "To be heard" does not mean only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process.20 In administrative proceedings, procedural due process has been recognized to include the following:

(1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent’s legal rights;

(2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights;

(3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and

(4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.21

In the case at bar, what appears in the record is that a hearing was conducted on 01 October 1996, which petitioner attended and where she answered questions propounded by the members of the fact-finding committee. Records further show that the petitioner was accorded every opportunity to present her side. She filed her answer to the formal charge against her. After a careful evaluation of evidence adduced, the committee rendered a decision, which was affirmed by the CSC and the Court of Appeals, upon a move to review the same by the petitioner. Indeed, she has even brought the matter to this Court for final adjudication.

Kinship alone does not establish bias and partiality.22 Bias and partiality cannot be presumed. In administrative proceedings, no less than substantial proof is required.23 Mere allegation is not equivalent to proof.24 Mere suspicion of partiality is not enough. There should be hard evidence to prove it, as well as manifest showing of bias and partiality stemming from an extrajudicial source or some other basis.25 Thus, in the case at bar, there must be convincing proof to show that the members of the fact-finding committee unjustifiably leaned in favor of one party over the other. Nothing on record shows that she asked for cross examination. In our view, petitioner cannot argue that she has been deprived of due process merely because no cross examination took place. Again, it is well to note that due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or given opportunity to move for a reconsideration of the action or ruling complained of.

The law requires that the quantum of proof necessary for a finding of guilt in administrative cases is substantial evidence or such relevant

evidence as a reasonable mind may accept as adequate to support a conclusion.

Well-entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond reasonable doubt, is sufficient basis for the imposition of any disciplinary action upon an employee. The standard of substantial evidence is satisfied where the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of trust and confidence demanded by his position.

G.R. No. 143964 July 26, 2004 GLOBE TELECOM, INC., petitioner, vs. THE NATIONAL TELECOMMUNICATIONS COMMISSION, COMMISSIONER JOSEPH A. SANTIAGO, DEPUTY COMMISSIONERS AURELIO M. UMALI and NESTOR DACANAY, and SMART COMMUNICATIONS, INC.respondents. FACTS: Globe and private respondent Smart Communications, Inc. ("Smart") are both grantees of valid and subsisting legislative franchises,13 authorizing them, among others, to operate a Cellular Mobile Telephone System("CMTS"), utilizing the Global System for Mobile Communication ("GSM") technology.14 Among the inherent services supported by the GSM network is the Short Message Services (SMS),15 also known colloquially as "texting," which has attained immense popularity in the Philippines as a mode of electronic communication. On 4 June 1999, Smart filed a Complaint16 with public respondent NTC, praying that NTC order the immediate interconnection of Smart's and Globe's GSM networks, particularly their respective SMS or texting services. TheComplaint arose from the inability of the two leading CMTS providers to effect interconnection. Smart alleged that Globe, with evident bad faith and malice, refused to grant Smart's request for the interconnection of SMS.17 On 7 June 1999, NTC issued a Show Cause Order, informing Globe of the Complaint, specifically the allegations thereinin violation of the mandate of Republic Act 7925, Executive Order No. 39, and their respective implementing rules and regulations."18 Globe filed its Answer with Motion to Dismiss on 7 June 1999, interposing grounds that the Complaint was premature, Smart's failure to comply with the conditions precedent required in Section 6 of NTC Memorandum Circular 9-7-93,19 and its omission of the mandatory Certification of Non-Forum Shopping.20 Smart responded that it had already submitted the voluminous documents asked by Globe in connection with other interconnection agreements between the two carriers, and that with those voluminous documents the interconnection of the SMS systems could be expedited by merely

amending the parties' existing CMTS-to-CMTS interconnection agreements.21 On 19 July 1999, NTC issued the Order now subject of the present petition. In the Order, after noting that both Smart and Globe were "equally blameworthy" for their lack of cooperation in the submission of the documentation required for interconnection and for having "unduly maneuvered the situation into the present impasse,"22 NTC held that since SMS falls squarely within the definition of "value-added service" or "enhanced-service" given in NTC Memorandum Circular No. 8-9-95 (MC No. 8-9-95) the implementation of SMS interconnection is mandatory pursuant to Executive Order (E.O.) No. 59.23 The NTC also declared that both Smart and Globe have been providing SMS without authority from it, in violation of Section 420 (f) of MC No. 8-9-95 which requires PTEs intending to provide value-added services (VAS) to secure prior approval from NTC through an administrative process. Yet, in view of what it noted as the "peculiar circumstances" of the case, NTC refrained from issuing a Show Cause Order with a Cease and Desist Order, and instead directed the parties to secure the requisite authority to provide SMS within thirty (30) days, subject to the payment of fine in the amount of two hundred pesos (P200.00) "from the date of violation and for every day during which such violation continues."24 Globe filed with the Court of Appeals a Petition for Certiorari and Prohibition25 to nullify and set aside the Orderand to prohibit NTC from taking any further action in the case. It reiterated its previous arguments that the complaint should have been dismissed for failure to comply with conditions precedent and the non-forum shopping rule. It also claimed that NTC acted without jurisdiction in declaring that it had no authority to render SMS, pointing out that the matter was not raised as an issue before it at all. Finally, Globe alleged that the Orderis a patent nullity as it imposed an administrative penalty for an offense for which neither it nor Smart was sufficiently charged nor heard on in violation of their right to due process.

The Court of Appeals issued a Temporary Restraining Order on 31 August 1999. In its Memorandum, Globe also called the attention of the appellate court to the earlier decision of NTC pertaining to the application of Isla Communications Co., Inc. ("Islacom") to provide SMS, allegedly holding that SMS is a deregulated special feature of the telephone network and therefore does not require the prior approval of NTC.27Globe alleged that its departure from its ruling in the Islacom case constitutes a denial of equal protection of the law. On 22 November 1999, a Decision28 was promulgated by the Former Special Fifth Division of the Court of Appeals29 affirming in toto the NTC Order. Interestingly, on the same day Globe and Smart voluntarily agreed to interconnect their respective SMS systems, and the interconnection was effected at midnight of that day. After the Court of Appeals denied the Motion for Partial Reconsideration,33 Globe elevated the controversy to this Court. Globe contends that the Court of Appeals erred in holding that the NTC has the power under Section 17 of the Public Service Law34 to subject Globe to an administrative sanction and a fine without prior notice and hearing in violation of the due process requirements; that specifically due process was denied Globe because the hearings actually conducted dwelt on different issues; and, the appellate court erred in holding that any possible violation of due process committed by NTC was cured by the fact that NTC refrained from issuing a Show Cause Order with a Cease and Desist Order, directing instead the parties to secure the requisite authority within thirty days. Globe also contends that in treating it differently from other carriers providing SMS the Court of Appeals denied it equal protection of the law. The case was called for oral argument on 22 March 2004. ISSUE : (1) whether NTC may legally require Globe to secure NTC approval before it continues providing SMS; (2) whether SMS is a VAS under the PTA, or special feature under NTC MC No. 14-11-97; and (3) whether NTC acted with due process in levying the fine against Globe HELD : The case arose when Smart had filed the initial complaint against Globe before NTC for interconnection of SMS.71 NTC issued a Show Cause Order requiring Globe to answer Smart's

charges. Hearings were conducted, and a decision made on the merits, signed by the three Commissioners of the NTC, sitting as a collegial body The initial controversy may have involved a different subject matter, interconnection, which is no longer contested. It cannot be denied though that the findings and penalty now assailed before us was premised on the same exercise of jurisdiction. Therefore, all the requirements of due process attendant to the exercise of quasi-judicial power apply to the present case. Among them are the seven cardinal primary rights in justiciable cases before administrative tribunals. First. The NTC Order is not supported by substantial evidence. Neither does it sufficiently explain the reasons for the decision rendered. The Order reveals that no deep inquiry was made as to the nature of SMS or what its provisioning entails. The NTC merely notes that SMS involves the "transmission of data over [the] CMTS," a phraseology that evinces no causal relation to the definition in M.C. No. 8-9-95. Neither did the NTC endeavor to explain why the "transmission of data" necessarily classifies SMS as a VAS. The question of the proper legal classification of VAS is uniquely technical, tied as at is to the scientific and technological application of the service or feature Moreover, the Order does not explain why the NTC was according the VAS offerings of Globe and Smart a different regulatory treatment from that of Islacom. Indeed, to this day, NTC has not offered any sensible explanation why Islacom was accorded to a less onerous regulatory requirement, nor have they compelled Islacom to suffer the same burdens as Globe and Smart. Second. Globe and Smart were denied opportunity to present evidence on the issues relating to the nature of VAS and the prior approval. Another disturbing circumstance attending this petition is that until the promulgation of the assailed Order Globe and Smart were never informed of the fact that their operation of SMS without prior authority was at all an issue for consideration. As a result, neither Globe or Smart was afforded an opportunity to present evidence in their behalf on that point.

NTC asserts that since Globe and Smart were required to submit their respective Certificates of Public Convenience and Necessity and franchises, the parties were sufficiently notified that the authority to operate such service was a matter which NTC could look into. This is wrong-headed considering the governing law and regulations. It is clear that before NTC could penalize Globe and Smart for unauthorized provision of SMS, it must first establish that SMS is VAS. Since there was no express rule or regulation on that question, Globe and Smart would be well within reason if they submitted evidence to establish that SMS was not VAS. Neither was the matter ever raised during the hearings conducted by NTC on Smart's petition. The opportunity to adduce evidence is essential in the administrative process, as decisions must be rendered on the evidence presented, either in the hearing, or at least contained in the record and disclosed to the parties affected Third. The imposition of fine is void for violation of due process Globe claims that the issue of its authority to operate SMS services was never raised as an issue in the Complaintfiled against it by Smart. Nor did NTC ever require Globe to justify its authority to operate SMS services beforethe issuance of the Order imposing the fine. The Court of Appeals, in its assailed decision, upheld the power of NTC to impose a fine and to make a pronouncement on Globe's alleged lack of operational authority without need of hearing, simply by citing the provision of the Public Service Act90 which enumerates the instances when NTC may act motu proprio. That is Section 17 NTC itself, in the Order, cites Section 21 as the basis for its imposition of fine on Globe. Under Section 17, NTC has the power to investigate a PTE compliance with a standard, rule, regulation, order, or other requirement imposed by law or the regulations promulgated by NTC, as well as require compliance if necessary. By the explicit language of the provision, NTC may exercise the power without need of prior hearing. However, Section 17 does not include the power to impose fine in its enumeration. It is Section 21 which adverts to the power to

impose fine and in the same breath requires that the power may be exercised only after notice and hearing. Thus, the Order effectively discriminatory and arbitrary as it is, was issued with grave abuse of discretion and it must be set aside. NTC may not legally require Globe to secure its approval for Globe to continue providing SMS. This does not imply though that NTC lacks authority to regulate SMS or to classify it as VAS. However, the move should be implemented properly, through unequivocal regulations applicable to all entities that are similarly situated, and in an even-handed manner.