ARTEMIO B. PACANA, PETITIONER, VS. THE HONORABLE DAVID M. CONSUNJI, IN HIS CAPACITY AS SECRETARY OF PUBLIC WORKS, TRANSPORTATION AND COMMUNICATIONS, AND THE HONORABLE POSTMASTER…

The authoritative force of Antonio v. Tanco,
Jr.^[1]
calls for application in this certiorari and mandamus
petition.  It is essentially the latter
proceeding as what is sought is the reinstatement of petitioner Artemio B. Pacana who, by virtue
of a decision of the then respondent Secretary of Public Works, Transportation
and Communications, David M. Consunji, was dismissed
from the service on March 11, 1974.  The
allegations on their face more than suggested that petitioner was not on the
best of terms with the then Postmaster General Enrico
Palomar, resulting in the audit examinations not once but three times of his
accountability as Acting Postmaster of Cagayan de Oro City.^[2] On a charge of dishonesty for using a mail
car personally, he was cleared by the then Secretary Baltazar
Aquino.^[3] He was, however, found guilty of the charge
arising from the shortage in the funds, resulting in the order of dismissal.^[4] He filed a motion for reconsideration but it
was denied.^[5] That led him to devote the matter through an
appeal to the Civil Service Commission, and which appeal is still pending for
consideration.^[6] As was pointed out in the
Comment of Solicitor General Estelito Mendoza,
considered as the Answer, with the availability to petitioner of an adequate
administrative remedy such as the appeal taken by him, this “civil action
for certiorari and mandamus certainly will not lie.”^[7] The admission of the pendency
of the appeal is thus fatal to petitioner’s invocation of a judicial remedy at
this stage.  So the above-cited case of
Antonio v. Tanco, Jr. ruled in language explicit and
categorical:  “As correctly observed
by the Solicitor General, Antonio, by requesting the President to revoke
Secretary Tanco’s suspension order, precluded
judicial intervention in his case while his request is pending
consideration.”^[8]

It needs only to be
pointed out that the formulation in the ponencia
of Justice Aquino is a restatement of a well-settled
doctrine.  The reason is quite
evident.  It is true that the judiciary
could be appealed to set aside or nullify official action that runs counter to
a legal norm.  So the rule of law
prescribes.  At the same time if a remedy
may be afforded by the executive branch, with respect to matters peculiarly
within its competence, it should be given the opportunity to correct the error
or deficiency in the order or determination thus assailed.  For one thing, it is in a much better
position to set matters right.  For
another, it is likely to develop an orderly and efficient procedure as to such
matters.  The Antonio opinion thus finds
support in a number of cases.^[9] In the traditional administrative law
terminology, the stage of ripeness for adjudication has not been reached.

An attempt, albeit
unsuccessful, is made by petitioner to blunt the authoritative force of the
Antonio ruling by alleging a procedural due process question.  Reyes v. Subido^[10] could then be relied upon to seek judicial
relief without resorting to exhausting an obvious administrative remedy.  As was made clear in Reyes from Lacson v. Romero^[11] to Cornejo v.
Secretary of Justice,^[12] there are at least ten such decisions.          It is not to be ignored, however, that
in Reyes, there was no appeal taken, the matter being brought to this Court
immediately.  There is another
consideration that argues against a favorable outcome of this petition.  In the decision of respondent Consunji dated March 11, 1974, it was specifically stated:  “Formally charged with the aforecited offenses, respondent in each individual case
elected a formal hearing which was granted. 
During the formal hearing, involving the amount of P58,681.72,
it was established that respondent incurred the shortage.”^[13] In his motion for reconsideration dated April
26, 1974, he pointed
out that the investigation had not as yet been terminated primarily because of
the denial of the opportunity to him to confront the witnesses against
him.  When the said motion for
reconsideration was denied on March 4, 1975, it was stated categorically by respondent Consunji “that facts and evidences on record
undoubtedly indicate that he incurred the shortage of P58,681.72.”^[14] In the dispositive
portion of such resolution, it was explicitly stated “that petitioner Artemio Pacana failed to submit
any new and material evidence to warrant a modification of the decision sought
to be reconsidered, [hence] the instant petition is hereby denied for lack of
merit.”^[15] Such motion for reconsideration afforded him
the opportunity to submit the evidence that would clear him of the charges of
the shortage of funds but he failed to do so. Under the circumstances, and with
the pendency of his appeal, this Court is of the
opinion, as stated at the outset, that the petition cannot prosper.

WHEREFORE, the petition is dismissed for lack of merit.

Barredo, Aquino,
Concepcion, Jr., Abad
Santos, and De Castro, JJ., concur.

^[1]
L-38135, July 25, 1975, 65 SCRA 448.

^[2]
Amended Petition, pars. 6-8, 10-11.

^[3]
Ibid, pars. 5 and 12.

^[4]
Ibid, par. 14.

^[5]
Ibid, pars. 15 and 16.

^[6]
Ibid, par. 17. The paragraph reads in full:  “On April 26, 1975, your petitioner filed his appeal to the
Civil Service Com­mission, and which appeal is still pending for
consideration.  A copy of the said appeal
is hereto attached, marked as Annex ‘F’ and made an integral part hereof but
notwithstanding this pending appeal, your petitioner comes before
this Honorable Tribunal to rest his cause.”‘

^[7]
Comment of Solicitor General, 11.  He was assisted by Assistant Solicitor
General Alicia V. Sempio-Diy and Solicitor Edgardo L. Kilayko.

^[8]
65 SCRA 448, 455.

^[9]
Cf. Ang Tuan Kai v. Import Control Commission,
91 Phil. 143 (1952); Santiago v.
Cruz, 98 Phil. 168 (1955); Peralta v. Salcedo,
101 Phil. 452 (1957); Montes v. Civil Service Board of Appeals, 101
Phil. 490 (1957); Cruz v. Del Rosario, 119 Phil. 63 (1963); Gonzales v.
Provincial Auditor of Iloilo, 120
Phil. 1508 (1964).  These are the
decisions cited by Justice Aquino.

^[10]
L-27916, August 21, 1975, 66 SCRA 203.

^[11]
84 Phil. 740 (1949).

^[12]
L-32818, June 28, 1974, 57 SCRA 663.

^[13]
Annex C to Petition, 1.

^[14]
Annex E to Petition, 2.

^[15]
Ibid.