AIR MANILA, INC., PETITIONER, VS. HON. MARCELO S. BALATBAT, DIRECTOR NILO DE GUIA, DR. GREGORIO Y. ZARA, AND COL. JUAN B. GUEVARRA AS MEMBERS OF THE CIVIL AERONAUTICS BOARD AND …

This is a petition for certiorari
filed by Air Manila, Inc., to determine the validity of Resolution No. 139 (68)
of the Civil Aeronautics Board in CAB Case No. 1414, allegedly issued without
or in excess of jurisdiction.

There is no dispute as to the facts of this case.

On 1 April 1968, the Philippine Air Lines, hereafter referred to
as PAL, petitioned the Civil Aeronautics Board, referred to hereafter as the
Board, for approval of a proposed schedule introducing seven flights —
F515/516, F555/556, F561/562, F531/532, F591/338, F527/528, and F211/212 — and
the adjustment of the flight schedule that may thus be affected (CAB Case No.
1414).  On 15 April 1968, action on the petition was deferred for
further study.

On 22 April 1968,
the Board passed Resolution No. 109 (68), referring PAL’s
petition to a hearing examiner for economic justification.  Accordingly, the designated hearing officer
set the initial hearing thereof for 30
April 1968.

On 29 April 1968,
PAL moved for reconsideration of Resolution No. 109(68).  By resolution of 6 May 1968, the Board deferred action on this later
motion, until PAL shall have resumed its DC-3 services in certain airports
named therein.

On 9 May 1968, PAL filed another motion, this time for reconsideration
of the Board resolution of 6 May 1968, on the ground that the new flights which
it was proposing to operate in Case No. EP-1414 will be serviced by jet-prop or
pure jet equipment only, thus, the order for resumption of DC-3 services in said
resolution was improper and should be deleted. 
In its Resolution No. 131 (68) of 20 May 1968, the Board deferred action
on this motion for reconsideration.

It appears, however, that on 15 May 1968, PAL filed an Urgent
Petition for approval of a consolidated schedule of jet and jet prop flights,
with an interim DC-3 schedule to different secondary and feeder points
(DTS-35).  On 28 May 1968, the Board
issued its Resolution No. 139 (68), approving DTS-35 for a period of 30 days,
effective 1 June 1968 up to 30 June 1968, subject to the conditions that (a)
the flight between Manila and San Fernando, La Union, F210/211 of the same
timetable, be operated daily instead of twice a week as proposed, and (b) that
all schedules under DTS-35, for which no previous approval has been granted by
the Board, are to be referred to a hearing examiner for reception of evidence
on its economic justification.  After the
examiner’s report, several of the proposed flights were approved for 30 days
from 31 July 1968.

On 31 May 1968,
Air Manila, Inc., filed the instant petition claiming that the respondent Board
acted without or in excess of jurisdiction and/or with grave abuse of
discretion in issuing its Resolution No. 139 (68).  It is petitioner’s allegation that the
proposed new schedule, involving an increase of frequencies, would not only
saturate the routes served also by petitioner, but would also affect its
schedule; that the Board’s approval of said Domestic Traffic Schedule without
receiving the evidence of the parties constituted a deprivation of petitioner’s
right to be heard; and that such authorization to PAL to operate the proposed
schedule without economic justification amounted to a capricious and whimsical
exercise by the Board of its power amounting to lack of jurisdiction.

There is no merit to the contention of petitioner.  It has been correctly said 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.^[1]
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 rights; (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 (4) 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.^[2]

In the present case, it can not truthfully be said that the
provisional approval by the Board of PAL’s proposed
DTS-35 violates the requisites of administrative due process.  Admittedly, after PAL’s
proposal to introduce new Mercury night flights (in CAB Case No. EP-1414) had
been referred to a hearing examiner for economic justification, PAL submitted a
so-called consolidated schedule of flights, DTS-35, that included the same
Mercury night flights involved in Case EP-1414, and this was allowed by Board
Resolution No. 139(68).  According to
respondents, however, the Board’s action was impelled by the circumstance that
at the time, the authorizations of certain flight schedules previously allowed
but were incorporated in DTS-35 were about to expire; thus, the consolidated
schedule had to be approved temporarily if the operations of the flights
referred to were not to be suspended.  In
short, the temporary permit was issued to prevent the stoppage or cessation of
services in the affected areas.  This
point petitioner has failed to refute.

Neither can the provisional authorization of DTS-35 be said to
have done away with the requisite hearing and investigation of the new flight
schedules and, consequently, to have deprived the petitioner of its right to be
heard.  Note that in allowing the
operation or effectivity of PAL’s
consolidated flight schedule, it was precisely prescribed that “all
schedules under the DTS-35 for which no previous approval has been granted by
the Board, are hereby referred to a hearing examiner for reception of evidence
on its economic justification.”^[3]
It has not been denied that such hearings were actually conducted by the
hearing examiner and a report on the result thereof was submitted to the
Board.  And the Board, considering the
report of the hearing examiner, passed Resolution No. 190 (68)^[4]
approving, for a period of 30 days starting 31 July 1968, only three or four
frequencies of the seven proposed new flights (F338, F591, F531/532, F555/556,
F527/528, F561/562, and F515/516).  There
is no proof, not even allegation, that in all those hearings petitioner was not
notified or given opportunity to adduce evidence in support of its opposition.

It may be true that the temporary approval of DTS-35 resulted in
the immediate operation of the opposed flights before the existence of economic
justification therefor has been finally
determined.  But this fact alone would
not work against the validity of the provisional authorization thus
issued.  For, under the law, the Civil
Aeronautics Board is not only empowered to grant certificates of public
convenience and necessity; it can also issue, deny, revise, alter, modify,
cancel suspend or revoke, in whole or in part, any temporary operating permit,
upon petition or complaint of another or even at its own initiative.^[5]
The exercise of the power, of course, is supposed to be conditioned upon the
paramount consideration of public convenience and necessity, and nothing has
been presented in this case to prove that the disputed action by the Board has
been prompted by a cause other than the good of the service.

It may be also pointed out that the new schedule objected to by
petitioner will affect its services in six routes in the following manner:

(a)   Route – MANILA-MACTAN-MANILA

F515/516 – Seven (7) additional flights a week and vice-
versa; schedule is timed just ahead of Air Manila’s schedule.

(b)   Route – MANILA-DAVAO-MANILA

F555/556 – Seven (7) additional flights a week and
vice-versa; schedule is timed just ahead of Air Manila’s schedule.

(c)   Route – MANILA-BACOLOD-MANILA

F531/532 – Seven (7) additional flights a week and
vice-versa; timed just ahead of Air Manila’s schedule.

(d)   Route – MACTAN-TACLOBAN-MACTAN

F527/528 – Seven (7) additional flights a week and
vice-versa.

(e)   Route – TACLOBAN-MACTAN-TACLOBAN

F391/392 – Flight schedule revised as to make it just ahead of Air
Manila’s schedule.

(f)    Route – MACTAN-DAVAO-MACTAN

F579/580 – PAL’s old schedule revised to
adversely affect Air Manila’s schedule in this route.

Respondents disclosed, however, and this
has not been denied by petitioner, that the schedule of flights provisionally approved
in Resolution No. 139(68) was subsequently readjusted by the Board in order to
conform with its established policy on separation time between flights.[6]
While the aforementioned readjustment of the schedule was secured by the
Filipinas Orient Airways and, therefore, may not particularly improve
petitioner’s situation, the resolution indicated that relief can still be
obtained from the Board, thus precluding resort at once to the relief afforded
by a certiorari proceeding in this
Tribunal.[7]
Likewise, the records show that by Resolution No. 190 (68) in the same Case No.
EP-1414, the Board allowed only three or four frequencies of the proposed seven
new flights, such authorization terminating after 30 days from 31 July 1968.

It is evident from the foregoing facts that not only has the
resolution subject of the present petition been modified, but its effectivity had been fixed up to 30 September 1968.  There being no proof that the situation
existing when Resolution No. 139 (68) was issued still persists, the issue
herein presented apparently has become moot and academic.

FOR THE FOREGOING CONSIDERATIONS, the petition in this
case is hereby dismissed, with costs against the petitioner.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Castro, Fernando, Teehankee, Barredo,
Villamor, and Makasiar, JJ., concur.

^[1] Asprec vs. Itchon,
L-21685, 30 April 1966, 16
SCRA 921.

^[2]
Garcia vs. Executive Secretary, L-19748, 13 September 1962, 6 SCRA 1, Concurring Opinion; also Ang Tibay vs. CIR, 69
Phil. 635.

^[3]
Annex R, Petition for Certiorari.

^[4]
Respondent Board’s Answer, page 8.

^[5]
Section 10 (C) (1), Republic Act No. 776.