ANTONIO RODRIGUEZ, PETITIONER-APPELLANT, VS. THE HON. ANDRES REYES, PRESIDING JUDGE, BRANCH VI, CFI, RIZAL, ET AL., RESPONDENTS?APPELLEES.

These three cases are inter-related.  G.R. No. L-26396 is
an appeal by Dr. Antonio Rodriguez from the judgment of the Court of First
Instance of Rizal dismissing the petition for
certiorari he had filed against Abelardo Subido, Com­missioner of Civil Service, in connection with
the lat­ter’s decision in two administrative cases against said
petitioner.  G.R. Nos. L-27026 and
L-27027 are original petitions for certiorari and prohibition filed in this
Court by Commissioner Subido, questioning the
actuation of the Civil Service Board of Appeals in taking cognizance of the
appeal from the same decision rendered by him against Dr. Rodriguez.

Dr. Rodriguez was Medical Adviser (Chief of Section) in the
Bureau of Medical Services.  On July 1,
1959, he was detailed as head of the National Mental Hospital by the then
Secretary of Health, Dr. Elpidio Valencia.  On July 8, 1960 he was administratively
charged on nine counts (Adm. Case No. R-23237), to investigate which the
Secretary formed a committee composed of several members.  Pending investigation, or on May 29, 1961,
Dr. Rodriguez was appointed “Chief of Hospital IV (R-54) in the Hospi­tal
Services (National Mental Hospital), Field Operations,” which appointment was
approved by the Acting Chief, Per­sonnel Transaction Division, in behalf of
then Commis­sioner of Civil Service Amado del
Rosario.  After the in­vestigation, where
evidence was adduced by both parties, the committee rendered its report on
November 20, 1961, finding the respondent innocent.  Upon its recommendation the Secretary of
Health exonerated him completely and indorsed the findings to Commissioner del
Rosario, who, how­ever, in his decision dated May 417, 1962, found Dr. Rod­riguez
“guilty of indiscretion” in connection with spe­cification
“b” of the charges, for having caused slaugh­tered pigs (belonging to
the National Mental Hospital) to be given to his superior and to the Auditor
General.” The penalty administered to him was an “admonition to be
more careful in his activities.”

On June 29, 1962 Dr. Rodriguez moved for reconsider­ation.  In his motion he did not question the factual
find­ings in the decision; he simply pointed out that the of­fense of
“indiscretion” did not exist in the statutes or in the civil service
rules and regulations.  His prayer was
that the verdict on that particular count “be entirely deleted from the
records of the case.” Eight months there­after, or on February 22, 1963,
Rodriguez wrote a letter to the Commissioner of Civil Service withdrawing his
mo­tion for reconsideration and manifesting his conformity to the decision of
May 17, 1962.  The reason he gave for the
withdrawal was that the administrative case had been pend­ing for a long time
and affected not only his peace of mind but also the “interest of (the)
public institution committed to his responsibility.” On March 18, 1963 the
request for withdrawal was granted by the Department Le­gal Counsel of the
Civil Service Commission, who signed the corresponding indorsement
“For the Commissioner.” On May 6, 1963 Abelardo
Subido, then Acting Commissioner of Civil Service,
revoked the grant of withdrawal as having been issued without authority.

Meanwhile, under date of January 23, 1962, another administrative
complaint, No. 24354, had been lodged with the Secretary of Health against Dr.
Rodriguez.  One of the seven charges was
electioneering.  Again the Secre­tary
created an investigating committee, to which he issued the following directive:

“To study the nature of such charges and determine the merit
of each case.  In case this committee
finds sufficient grounds for investigation, it is hereby directed that a formal
investigation be con­ducted in accordance with existing rules and
regulations.  After the investigation of
the case, the Com­mittee shall submit to the under­signed its findings,
comments and recommendations.”

The investigating committee required Dr. Rodriguez to submit his
explanation, which he did on March 6, 1962. 
On August 29, 1962 the committee, on the basis of the said explanation
alone and without conducting a formal investigation, rendered a memorandum
report recommend­ing exoneration.  On
October 29, 1962 the Secretary of Health indorsed the recommendation, with his
full con­currence, to the Civil Service Commissioner.

On September 12, 1963 Commissioner Abelardo
Subido rendered a joint decision in the two
cases.  In Case No. 23237 he found Dr.
Rodriguez guilty of misconduct in of­fice for having loaned government
construction materials to a private contractor in connection with a project the
latter was doing for the National Mental Hospital.  It was a charge not touched upon in the
motion for reconsi­deration of Dr. Rodriguez, and of which he had already been
found innocent by the investigating Committee cre­ated by the Secretary of
Health, by the Secretary himself and by Civil Service Commissioner del Rosario.  In Case
No. 24354 the Commissioner found the respondent guilty of the charge of
electioneering.  The penalty imposed was
dismissal from office, which the Commissioner ordered, in the same decision,
immediately executed “in the public interest.”

Dr. Rodriguez personally received a copy of the de­cision on
September 14, 1963.  On the same day he
filed a petition for certiorari with preliminary injunction in the Court of
First Instance of Rizal, alleging that the decision
had been rendered without due process of law, and without jurisdiction or with
grave abuse of discret­ion.  The
injunction was issued by the Court, restrain­ing immediate execution of the
verdict of dismissal.

On February 23, 1966 Dr. Rodriguez appealed the decision of
Commissioner Subido to the Civil Service Board of
Appeals.  On May 4, 1966 the Court of
First Instance dismissed the petition for certiorari on the ground of
non-exhaustion of administrative remedies. 
Dr. Rodriguez moved to reconsider, and after his motion was denied,
filed a petition for review with preliminary injunction in the Court of
Appeals, which thereafter certified the case to this Court, where it was
docketed as Case No. 26396.

Commissioner Subido, on his part, tried
to have the Civil Service Board of Appeals dismiss the respondent’s appeal
before it on the ground that the same had been filed out of time and that his
decision was already final.  The Board
turned down the plea, and Commissioner Subido came to
this Court on certiorari and prohibition, his pe­tition being docketed under
Nos. L-27026 and 27027.

On January 5, 1967, this Court issued an order tem­porarily
restraining the Civil Service Board of Appeals from taking cognizance of and
assuming jurisdiction over the appeal taken by Dr. Rodriguez, but the order
failed to take effect because two days before, or on January 3, the Board had
decided the appeal, declaring the decision of Commissioner Subido
null and void for having been rend­ered “without jurisdiction and without
due process of law,” and ordering the reinstatement of Dr. Rodriguez to
his position.

There are two issues presented for resolution:  (a) whether or not the decision of
Commissioner Subido was rendered with jurisdiction
and/or due process; and (b) whether or not the appeal taken by Dr. Rodriguez to
the Civil Service Board of Appeals was timely.

1.  With respect to
Administrative Case No. 23237 our position is that the decision of Commissioner
Amado del Rosario dated May 17, 1962, finding Dr.
Rodriguez guilty of indiscretion and imposing upon him the penalty of
admonition, had already become final and therefore beyond the jurisdiction of
Commissioner Subido to set it aside when he did sp
and rendered his own decision on September 12, 1963.  True, Dr. Rodriguez moved for re­consideration
of the del Rosario decision.  But he with­drew that motion on February 22, 1963; and since no act­ion
thereon had yet been taken at the time, the with­drawal was a matter of right
on his part, subject neither to approval nor to disapproval by the
Commissioner.

It has been said, however, that the complainant in the said
administrative case sent a letter to the Com­missioner on December 20, 1962, asking for a “revalua­tion
of the entire evidence in this case …..” We do not believe, however, that
the step thus taken by the complainant kept the case open independently of the
mo­tion of Dr. Rodriguez and its subsequent withdrawal.  It bears emphasis that this motion of Dr.
Rodriguez did not question the findings of fact in the del
Rosario deci­sion.  The only point it
raised was a legal one – that in connection with the specific charge of which
he had been found guilty, there was no such offense in the ci­vil service law
or regulations as “indiscretion”; and on this ground he asked that
the decision be modified accordingly.

The letter of the complainant was evidently not in­tended to be a
motion for reconsideration, since the complainant was later on to request the
Commissioner that it be considered as such a motion – this on April 3, 1963, after Dr. Rodriguez had
withdrawn his own mo­tion.  If the letter
was but an answer or opposition to the said motion-of Dr. Rodriguez, then it
became functus oficio
after the latter was withdrawn.  On the
other hand, if it was an independent motion for reconsidera­tion in itself then
it was filed out of time – more than seven (7) months after the del Rosario decision was rend­ered.  In either case that decision had already
become final when Commissioner Subido reconsidered it
and rend­ered his own decision on September
12, 1963.

2.  Going now to
Administrative Case No. 24354, our view is that the decision of the
Commissioner suffers from a basic infirmity – that it violated the principle of
due process, having been rendered without investiga­tion and without first
affording the respondent an oppor­tunity to defend himself.  It must be remembered that the authority
given by the Secretary of Health to the in­vestigating committee he had created
was “to study the nature of (the) charges and determine the merit of each
case (and) in case this committee finds sufficient grounds for investigation,
it is hereby directed that a formal investigation be conducted in accordance
with existing rules and regulations.”

The validity of the Subido decision is
sought to be justified by the argument that under Section 32 of the Civil
Service Act of 1959 Dr. Rodriguez had the right to elect a formal
investigation, and since he made no such election he cannot later on be heard
that an investiga­tion was denied him. 
There is here a confusion as to the order of
priority among the rungs of the procedural lad­der.  Dr. Rodriguez could hardly have asked for a
formal investigation at the stage in which the administrative case was at the
time.  He had merely been required to
submit his explanation in writing, which he did.  The committee was still to determine whether
there were suf­ficient grounds for investigation, and if there were, to conduct
a formal investigation.  This is explicit
in the instruction given by the Secretary of Health.  The com­mittee found, on the basis of the
charges and the expla­nation, that no formal
investigation was necessary, and hence it recommended that the charges be
dropped for lack of merit.  The
recommendation was thereupon favor­ably indorsed by the Secretary of Health to
the Commis­sioner of Civil Service. 
There was manifestly neither need nor occasion for Dr. Rodriguez to
elect a formal investigation pursuant to the Civil Service Law.  It would have been not only premature but
inconsistent for him to ask that he be formally investigated on charges of
which he had already been exonerated.

If, despite the findings of the investigating committee and the
concurring recommendation of the Secretary of Health, the Civil Service
Commissioner still consider­ed the charges grave enough to warrant further
action, the basic principle of due process required that Dr. Rodriguez be first
heard in his own defense, or at least al­lowed to express a choice to undergo a
formal investigation or not in accordance with Section 32 of the Civil Service
Act.  This right was not accorded
him.  Ironi­cally enough Dr. Rodriguez
was found guilty of elect­ioneering on the strength of a letter he had annexed
to his explanation submitted to the investigating com­mittee – a letter which,
if anything, was exculpatory in the light of the charge against him and the
explana­tion that he had submitted.  He
was accused of electioneering for the benefit of the Nacionalista
Party; the letter was sent to him by some Liberal Party men in Bulacan thanking him for having employed fourteen (14)
skilled workers who turned out to be “Liberals.”

A revealing sidelight on this aspect of the case, which shows how
precipitate and groundless was the pro­nouncement, of the guilt of Dr.
Rodriguez, is the follow­ing excerpt from the decision of the Civil Service
Board of Appeals:

“In the instant case, the Commissioner, without giving the re­spondent
a chance to be heard, found him guilty of partisan poli­tical activity on the
basis of a letter from Liberal Party officials thanking him for having employed
skilled laborers, 14 of whom were election inspectors of the party in Malolos, Bulacan.  If a hearing had been conducted by the Commis­sioner
before he convicted the re­spondent of electioneering, the latter could have
had the opportu­nity to explain how he came to employ the 14 skilled laborers
referred to.  Upon questioning by the
Board at the hearing of this appeal, the respondent informed the Board that he
did not know the 14 men be­fore he employed them; that they were screened by a
screening com­mittee in the hospital, before they were employed, together with
hund­reds of other recommendees; that these 14 were
only part of the 300 casual laborers employed in the hospital because it was
greatly un­dermanned; that the screening com­mittee recommended the employment
of the 14 because they were found to be skilled and with tools; that these
applicants for employ­ment who were not skilled or did not have tools were not
employed in the hospital regardless of re­commendation; that the 14 workers
were not employed at the same time, but they represent the to­tal workers from Malolos who had been employed at various times; and that he
came to know that the 14 were election inspectors of the Liberal Party in Malolos after he had already the letter of thanks regarding
their employment.  Respondent, however,
was barred from making this explanation by his immediate conviction and
dismissal without a hearing. 
Consequently, respondent was denied due process.”

3.  Assuming that
Commissioner Subido could validly render his joint
decision of September 12, 1963,
the next question is was the appeal taken by Dr. Rodriguez to the Civil Service
Board of Appeals timely?  As al­ready
observed hereinabove, over the Commissioner’s ob­jection the Board took
cognizance of the appeal, held itself with jurisdiction to entertain the same,
and on January 3, 1967
promulgated its resolution declaring the decision appealed from null and void
and ordering the reinstatement of Dr. Rodriguez to his position.

The recourse taken by Dr. Rodriguez to the Court of First
Instance of Rizal on certiorari with preliminary
injunction was eventually dismissed by that Court on the ground that the
petitioner had not exhausted the administrative remedy available to him,
namely, by ap­peal to, the Civil Service Board of Appeals.  It is, to out mind, open to serious doubt
whether such an appeal was an adequate remedy for the purposes sought by the
petitioner in that case.  He was, first
of all, chal­lenging the jurisdiction of the Commissioner to render the
decision with respect to the first administrative case, and pleading lack of
due process and grave abuse of discretion with respect to the other.  And the imme­diate relief prayed for was
preliminary injunction to restrain the execution of the decision already
ordered by the Commissioner.  These remedies,
while clearly spelled out in the Rules of Court as within the dispensation of
the courts, are nebulous and unsettled when sought in administrative
bodies.  An appeal to the Civil Service
Board of Appeals connotes a review of the case on its merits, a reappraisal of
the evi­dence and of the penalty meted below. 
When the need of the moment, however, is to stop immediate execu­tion of
that penalty and, after hearing, to set aside the decision altogether on
grounds of jurisdiction and due process, we are not prepared to say the doors
of the courts must remain shut.  It is
preferable to over­look slight deviations from procedural paths which even to
the discerning may appear quite hazy than dis­regard the greater imperatives of
justice and fair play.  After all the course pursued in the court below was one in equity,
and the function of equity is to avert or prevent civil injury which may
otherwise be irreparable.

Considering all these circumstances, we are of the view that the
issuance of the writ of preliminary injunction by the Court of First Instance
interrupted the running of the period within which an appeal could be taken
from the Civil Service Commissioner to the Civil Service Board of Appeals; and
that therefore the appeal, actually taken on the day Dr. Rodriguez receiv­ed
copy of the court’s decision, wherein the injunction was dissolved, was a
timely one.  In the case of Geu­keko vs. Araneta, etc., 102
Phil. 706, decided Decem­ber 24, 1957, the party adversely affected by a deci­sion
of the Director of Lands relative to a disputed lot in the Tambobong
estate went directly to the Court of First Instance and sought to annul the
said decision instead of appealing to the Secretary of Agriculture and Natural
Resources, which he was supposed to do with­in 60 days under the rules
promulgated by that offi­cial.  No
injunction was issued by the court, which dismissed the case after more than
two years on the ground that the plaintiff had not exhausted his avail­able
administrative remedies.  An appeal was
then taken from the decision of the Director of the Bureau of Lands to the
Secretary of Agriculture and Natural Resources. 
This Court held, when the matter came up be­fore it on mandamus and
prohibition, that the institu­tion of the court action suspended the running of
the period for such appeal, making reference to the admi­nistrative policy of
the Department to that effect.

In connection with the administrative cases against Dr.
Rodriguez, the Civil Service Board of Appeals similarly took cognizance of his appeal
and held that it was timely.  Indeed in
its decision it cites a number of cases where appeals (forwarded to it by the
Commissioner) were entertained even after the expiration of the time limit.  It did no more than what the Secre­tary of
Agriculture and Natural Resources did in the Geukeko
case, and with even greater justification, for there was a judicial injunction
issued against the execu­tion of the decision of the Civil Service
Commissioner.

When the vote on these cases was taken, four mem­bers of this
Court, including the undersigned, concurred in this opinion; two members
dissented; four abstained from voting; and the last one, Justice Felix V. Makasiar, had not yet been appointed.  Since the votes on either side are short of
the required majority, the petition of Commissioner Abelardo
Subido in G. R. Nos. L-27026 and L-27027 should be,
as it is hereby, dismissed, and the jurisdiction of the Civil Service Board of
Appeals in the appeal taken by Dr. Antonio Rodriguez is deemed upheld.  Considering that the said Board has already
rendered its decision, the petition in No. L-26396 is likewise, dis­missed as
moot and academic.

Concepcion, C.J., concurs in the separate dissenting opinion of Justice
J.B.L., Reyes.

Reyes, J.B.L., J., dissents in
a separate opinion.

Dizon, Zaldivar,
Castro, and Villamor,
JJ., concur.

Fernando, Teehankee, and Barredo, JJ., did not take part.