IRINEO A. MERCADO, COMPLAINANT, VS. COMMISSIONER ENRIQUE MEDINA, RESPONDENT.

On August 9, 1966 Irineo Mercado filed
with this Court an administrative
complaint against Chairman Enrique Medina of the Public Service
Commission, charging him with (1) “non­feasance or dereliction of duty;” (2) “misfeasance,
misconduct, and conduct unworthy of a public official;” and (3) “abuse
of discretion and partiality.”

A chronology of the essential antecedent events is ne­cessary for
a clear understanding of the factual
setting.

On March 19, 1964 bus operators affiliated with the Bus Operators Association of the
Philippines (BOAP) filed an application
for increase in passenger fares with the Public Service Commission (hereinafter
referred to as the Commission).  Pending
resolution of this application (which was docketed as case 64-2365), the
Commission, upon motion of the applicants, issued on December 8, 1965 an order which provisionally hiked the
transportation rate from 1 1/2 to 2 centavos per kilometer and set the
minimum fare at 15 cen­tavos for seven kilometers or less.  Due to numerous com­plaints from commuters,
the Commission issued an amendatory order on January 17, 1966, reducing the minimum pro­visional fare to 10 centavos
for five kilometers or less, with the proviso “that in the Greater Manila
area, the zo­nal arrangement provided for in the Order of May 12, 1960, Case No. 97768 (Ruben Beltran, applicant) shall
be applied”.  Soon thereafter
residents from Quezon City complained to the Commission that the bus operators, citing as their authority
the “zonal arrangement” proviso, divided Quezon
City into zones and collected fares in excess of the provisional rate allowed by the
order of January 17, 1966.

One of the protesting commuters was the complainant Mercado who
filed on January 27, 1966 with
the Complaints, Investigation and Enforcement Division a written complaint
denouncing the MM and JD bus
companies for overcharging passengers commuting from Pagasa
and Project 6 in Quezon City to Manila and back.  The alleged amount of the overcharge was 5 centavos per ride.  Atty. Tiburcio Hilario, chief of the division, conducted three preliminary
hearings on the complaint (which was docketed as case 66-11-OC).  After the third hearing, or on March 4, 1966, the complainant filed the same
complaint with the respondent commissioner.

On
March 9, 1966 the
respondent commissioner ordered the MM
Bus Lines, Inc. to show cause why drastic
disciplinary action should not be taken against it.  On March
17, 1966 the respondent conducted a formal hearing, at which he
dictated an order which formed the basis of his written order of the same
date.  This latter order states, inter alia, “that the alleged overcharging committed by the respondent [the MM Bus Lines, Inc.] was due to a confusion created by the words ‘zonal area or zonal arrangements’
appearing in orders the Commission dated May
12, 1960 and of Jan. 17, 1966.  In
order to arrive at a definite solution to this problem the Commission hereby creates a Committee to
* * * survey the areas and lines cover by the different operators in the City of Manila and suburbs and study whether the zonal
system established since many years ago, in the City of Manila and suburbs, should be
abandoned or conti­nued and to make the necessary report and recommendations to the Conmission not later than April 15, 1966.  This case
will be sat for hearing on the merits of the case soon after the report of the Committee is
filed * * *”

Or
April 14, 1966 Atty. Jose Beltran, counsel for the oppositors in
case 64-2365, filed with this Court a petition for certiorari with preliminary injunction (G.R. L-25798),
praying that the Commission be enjoined from enforcing its orders of December 8,
1965 and January 17, 1966 and that the said orders be adjudged illegal.  On April
27, 1966 the Commission, upon separate motions of the parties, indefinitely postponed the hearing on
the merits of case 64-2365 until final
resolution of the petition pending be­fore this Court.

On
May 10, 1966 Atty. Generoso Almario,
Chief Legal Officer of the Commission and the third person to be ap­pointed chairman of the committee
created by the March 17th order above
adverted to, submitted his recommendations to the respondent.  The latter reserved action on the said re­commendations,
and suspended the proceedings in case 66-11-OC, pending the decision of this
Court in G.R. L-25798, believing that
the eventual
resolution of the latter case
would substantially affect the disposition of the complainant’s charg­es against the MM and JD bus companies.  On June 15, 1966 the complainant in
writing urged the respondent to resolve without delay the case he filed against the
erring bus operators.  Then, after about 45 days of inaction on the part of the
respondent, the complainant
instituted the present
administra­tive case, which was thereafter referred by this Court to Mr. Justice Ramon
Nolasco of the Court of Appeals for in­vestigation, report and
recommendation.  On August 24, 1967 Mr. Justice Nolasco,
after an exhaustive investigation, submitted his report wherein he recommended
that no disciplinary action be taken against the respondent but that he “be en­joined to
proceed with the
hearing of Case No. 66-11-OC in order to determine whether or not the complaint for
overcharging * * * is meritorious.”

We have painstakingly
reviewed the record, and we find
ourselves
in agreement with Mr. Justice Nolasco that the
charges against the respondent commissioner are not substantiated by
sufficient, competent and convincing evidence.

1. Anent the charge of “non-feasance
and dereliction of duty,” the complainant alleged that the respondent deliberately delayed
the resolution of case 66-11-OC and maliciously prolonged the proceedings
therein in order that in the meantime the erring bus
operators could continue harassing and
cheating the hapless commuters.  He
claimed that the creation of the committee was a mere dilatory tactic because its purpose – to study the advantages
and disadvantages of the “zonal arrangement” and the “total distance travelled” systems – was completely alien to the
basic issue of overcharging.

The respondent countered that he had acted with dispatch as he had cited the parties to appear without delay; that if there
was delay in the resolution of the complaint, this was not of his own design but instead
was warranted by a supervening event–the filing and pendency of a petition for certiorari in this Court wherein
the legality of the orders of December 8, 1965 and January 17, 1966 was
chal­lenged, these orders being the very same orders alleged to have been
violated by the bus companies; and that the crea­tion of the committee was
justified because in the resolu­tion of the issue of overcharging, the question
of what sys­tem should be followed by the bus companies – the “total dis­tance
travelled system” or the “zonal
arrangement” – was in­escapably involved.

We agree with Mr. Justice
Nolasco that the respondent “is guilty of
neither non-feasance nor dereliction of duty.  This offense implies a willful or fraudulent omission or neglect of official duty, and not
mere failure to do one particular thing (Hagener v,
Pulitzer Pub. Co., 158 S.W. 54).  Viewed
in this context, the respondent’s actuations manifestly do not amount to
dereliction of duty.  The record shows
that shortly after the respondent received the complaint, he issued a
“show-cause” order against the MM Bus Lines, Inc., and thirteen days
after the filing of the complaint he conducted the first formal hearing.  Then believ­ing that the complaint could be
resolved fairly only after a thorough appraisal of the “zonal” and
“total distance travelled” systems, the
respondent created a committee for this purpose.

The contention of the
complainant that delay was deli­berately resorted to by the respondent to favor
the bus ope­rators, is bereft of evidentiary foundation, We believe, however,
that the respondent commissioner committed an error of judgment in not
proceeding with the hearing of case 66-11-OC, despite the pendency
in this Court of the petition for certiorari relative to case
64-2365.  If the bus operators are found
guilty of exacting fares beyond the rate provisionally authorized by the controverted orders, a subsequent declaration by this Court
that the said orders are valid will not mitigate, much less justify, their
violation.  Upon the other hand, the
nullity of said orders will not exempt the erring bus companies from liability
for in the
very least they could be ordered to make the necessary refund.

Thus, as correctly
pointed out by Mr. Justice Nolasco,

” * * * in Case No. 66-11-OC, the
complainant was complaining of having been overcharged by the MM Bus Lines, Inc.  He was not, however, question­ing the
increase of rates in connection with the order of the Public Service Commission, dated Jan­uary 17,
1966 (Exhibits C and 3).  Such being the
case, neither the pendency
of the certiorari proceedings before the Supreme Court, nor the postponement of further action, upon petition of the parties, in Case No. 64-2365, should have deterred the respondent from continuing with the
proceedings in Case No. 66-11-OC.”

2. Regarding the charge of “misfeasance, misconduct and
conduct unworthy of a public official,” the complain­ant averred that the
respondent, with manifest intent of favoring the bus operators at the expense
of the riding public, made substantial and prejudicial alterations when his
dictated order was reduced to written form. 
At the hearing on March 17, 1966 the respondent allegedly dictated an order
which contained a finding confirming the overcharging; a directive to the bus operators
through their counsel, Atty. Regala, to refund
the collections made in excess of the authorized rates; a directive creating a
committee of three headed by
Atty. Tiburcio Hilario with
the respective counsel of the complainant and the respondents as members; and a
directive limiting the function of the committee to checking the distance between Pagasa District, Quezon City and Manila. 
When the written order was handed down, however, it made no
mention of the finding of overcharging or the directive for refund, named
Angeles Rodriguez commit­tee chairman instead of Atty. Hilario
as previously an­nounced, and burdened the committee with the additional duty of appraising the advantages and
disadvantages of the “zonal arrangement” and “total distance travelled”
systems.

The
respondent vehemently denied that the changes he introduced in the written order altered the essence of the dictated order, maintaining that the verbal
order was cor­rected not to favor the
bus operators but to make the con­tents
thereof conform to the facts of
the case and his real
intentions.  He charged the complainant
with misconstruing the dictated order.

A portion of the verbal order,
not controverted by the respondent, states that

“In view of this and considering that the over­charging
committed by the respondent was due to a confusion created by the word ‘zonal arrangement’ appear­ing in the order of this Commission dated May 12, 1960 * * *”.

According to the respondent, this statement does not confirm the accusation of
overcharging.  As he correctly points
out, it would be superfluous to create a committee to make a “sur­vey of the areas travelled” if there was already a categorical finding of
overcharging by the bus operators

The
reproduced dictated order also contains the fol­lowing statements:

“(Atty. Regala promises that the
difference in collection will be returned),” and

“The Commission expects the respondent to voluntarily return
the amounts overcharged * * *”.

Again, we agree with the respondent that these two
statements cannot be construed to constitute an order for refund.  The word
“expects” is not equivalent to a command or an
order.  With respect to that statement
regarding Atty. Regale’s pro­mise to make a refund, the respondent testified
that he or­dered this portion deleted upon the vigorous
manifestation of Atty. Regala that he could not bind or commit his client.  This testimony was corroborated by Consuelo
D. Paragas, the stenographer who took down the
dictated order.

With
respect to the change of committee chairman, the respondent explained that he correction after realizing that Atty. Hilario had already appeared on behalf of the commuters, and
it would be better if he appointed as chairman one who had not had previous
actuations for or against any of the parties. 
When the complainant’s counsel protested the
appointment of Angeles Rodriguez on the ground that the latter is a compadre of one of the bus operators, the
respondent unhesitatingly named Atty. Almario to sit
as chairman.

The
respondent admitted that the dictated order directed the committee merely to
check the kilometer markings.  However, he maintained that the
additional function of studying the advantages and disadvantages of the
“zonal arrangement” and “distance travelled”
systems is not unjustified because the “zonal arrangement,” as a
method for determining the amount of the fare, was pleaded by the bus operators
in their deafense.

We
thus agree with Mr. Justice Nolasco that

“On the whole, * * * the respondent has satisfactorily
explained the alterations and/or modifications, if any, which he had made in
the final draft of the order which he issued dated March 17, 1966 (Exhibit J).  In this connection,
it may be stated that the evidence does not clearly establish that, in making
such modifications, the respondent has been actuated by bad faith or any
intention to be partial in favor of the bus operators.  Needless to say, the respondent has an inherent right, while his order or
judgment is still under his control, to correct errors or mistakes, or
injustices, (Section 5[g], Rule 135, Rules of Court)”.

3. The charge of
“abuse of discretion and partiality” does not deserve extended discussion.  The
alterations made by the respondent of the dispositions he announced in his dictated order were
not motivated by caprice, arbitrariness or partiality.  Similarly, the accusation that the respondent favored the bus operators lacks
evidentiary support.  As Mr. Justice Nolasco aptly observes,

“ * * * The charge of partiality against
the respondent has not been satisfactorily established.  While
it may be true that suspicion might have been engen­dered in the mind of
the complainant regarding alleged partiality
of the respondent in favor of the bus ope­rators, it may be stated, however,
that mere suspicion or conjecture alone cannot be afforded weight
and cre­dence.”

Indeed,
no combination of speculation, surmise and suspi­cion, howsoever contrived, can
attain the category of evedentiary proof.

ACCORDINGLY, the complaint is dismissed, and the
respondent is absolved from all the charges. 
Under the environmental circumstances, however, it would appear highly advisable that the
respondent proceed with the hearing of case 66-11-OC with reasonable and arrive
at a decision
with deliberate speed.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Angeles, and Fernando, JJ., concur.