FELIX MONTEMAYOR, PETITIONER, VS. HON. SECRETARY OF LABOR, BLAS F. OPLE AND ARANETA UNIVERSITY FOUNDATION, RESPONDENTS.

Considerable stress is laid by petitioner in this motion for the
reconsideration of our decision of May 31, 1977 dismissing the certiorari
proceeding to set aside a resolution of respondent Secretary of Labor granting
clearance to private respondent, the Araneta
University Foundation, for his dismissal as professor in such University, but
without payment to him of P14,480.00 as accrued back
wages.  As will be shown, there is lack of support in law for such a
contention.  While there is sympathy for
the plight in which petitioner now finds himself,
still the norm followed by this Court in suits for certiorari directed
against the Secretary of Labor does not call for an affirmative response.  Moreover,
his own motion for reconsideration categorically stated that he would not
“like anymore to teach in the [Araneta
University Foundation] and so [he is] not asking for reinstatement.”^[1]

1.  In
the petition for certiorari, what was complained of was lack of
procedural due process not in the proceeding before the labor officials but
before the Araneta Foundation.^[2]
Such a charge was reiterated in the memorandum filed on his behalf by his then
counsel, the principal point raised being that the members of the panel of
investigators were all prejudiced against him and that it was not
“therefore amazing that the poor petitioner in the instant case does not
have a chance.”^[3]
It was admitted though that a previous investigation that took place on April 24, 1974 “was attended by
petitioner as well as complainant with his two witnesses.”^[4]
In the decision sought to be reconsidered, mention was made of such a
fact.  After which, there was reference
to a denial of a motion for postponement filed by petitioner in the second
investigation.  Such a deficiency, as was
explained in our decision, was remedied in view of the fact that petitioner had
the chance to air his side before the Labor Commission.  It is
well-settled that an infirmity that would vitiate the original proceeding could
thereafter, either on a motion for reconsideration or on review by another
body, be subject to correction.^[5] In this motion for reconsideration,
petitioner had shifted ground.

The major thrust now is that the hearing before the National
Labor Relations Commission did not conform with the requirements of procedural
due process as the witnesses against petitioner were not called before it so
that they could be cross-examined.  As
pointed out in the comment of Solicitor General Estelito
P. Mendoza:  “This argument is
untenable.  It is a well-established
principle that the right of an accused or a party to be confronted by the
witnesses against him is a personal privilege which the latter may avail
himself of or which he may waive, as he may see fit.  The waiver may take the form of an express
consent, by failure to assert it on time, or by conduct inconsistent with a
purpose to insist on it.  In the case at
bar, petitioner’s lack of objection in the formal hearings before the labor
Arbiter to the presentation of the testimonies of his complainants and their
witnesses taken during the school investigations and his lack of assertion of
his right to cross-examine them on their affidavits submitted thereat, coupled
with the fact that he presented his evidence, together with his affidavit,
impugning the regularity of the proceedings before the investigating committees
and assailing the legality of his removal, are clear indications that
petitioner had waived his right to confront his complainants and elected to
rely solely on the strength of his own evidence.  He cannot now complain that he was denied
such a right.  It is significant to note
in this regard that petitioner never impugned the regularity of the proceedings
before the Labor Arbiter.  On the
contrary, he admitted that ‘indeed, the NLRC Hearing Officer, the Labor
Arbiter, strictly followed the due-process requirements.’ (Motion
for Reconsideration, p. 10).”^[6]

2.  Petitioner would seem
to mitigate the force of such admission about the observance of procedural due
process by asserting that it was incumbent on the respondent University to
present the witnesses in the National Labor Relations Commission hearing.  There is a misapprehension on his part.  All he is guaranteed under the authoritative Ang Tibay doctrine is that he be
heard.^[7]
Implicit in such a concept is that the burden is cast on him to sustain his
side of the controversy.  If he fails to
do so, the adminis­trative agency concerned could rely on the evidence offered
by the other party.  That was what
happened in this case.^[8]
If at all then, petitioner had only himself to blame.

3.  Nor is petitioner’s
case for reconsideration bolstered by the reference to the high ideal that
animates the concept of due process.  As was pointed out in J. M. Tuason and
Co. v. The Land Tenure Administration:^[9]
“It is a mandate of reason.  It
frowns on arbitrariness, it is the antithesis of any
government act that smacks of whim or caprice. 
It negates state power to act in an oppressive manner.  It is, as had been stressed so often, the embodiment
of the sporting idea of fair play.  In
that sense, it stands as a guaranty of justice. 
That is the standard that must be met by any governmental agency in the
exercise of whatever competence is entrusted to it.”^[10]

If the various proceedings had in this case, including the first
investigation, were considered in their totality, it cannot be said that the
decision arrived at by respondent Secretary of Labor is susceptible to the
charge of arbitrariness.  It is worth
noting anew that there was a previous investigation where petitioner had the
chance to cross-examine the witnesses against him.  At that time, the finding was adverse.  It was true his services were not terminated,
a lighter penalty being imposed on him. 
Viewed in such a light, the imputation that respondent Secretary of
Labor, which is the only issue before us, acted in disregard of the due process
mandate is not borne out.  There is no
justification for a reconsideration.

4.  On the question of the
injury to his reputation arising from the dismissal of his petition for certiorari,
it should be made clear that the only issue before this Court in this
proceeding is whether or not the actuation of an administrative official in the
enforcement of the Labor Code could be stigmatized as a denial of due process.  The conclusion reached by this Court after a
review of the records is that it could not be so considered.  That was all that was decided.  The decision reached by respondent public
official to grant clearance to private respondent Araneta
University Foundation was thus upheld. 
That is the import of the decision. 
In contemplation of law, it is not strictly accurate to state that there
was a finding on the part of this Court that immorality was proven against the
petitioner.  All that is signified by the
decision sought to be reconsidered is that the procedure followed resulting in
this clearance for his dismissal cannot be characterized as tainted by a denial
of procedural due process.  That was the
issue before us.  That was what was
passed upon and decided.  His dismissal
from the service then could be viewed in a light less damaging to his prestige
and reputation.  Considering his ability
and talent as revealed by his pleadings, whatever injurious effect the decision
may have had could be mitigated by the lapse of time.

WHEREFORE, the motion for reconsideration is denied.

Barredo, Antonio, Aquino,
and Concepcion,
Jr., JJ., concur.

Santos, J., on official leave.

^[1]
Motion for Reconsideration of Petitioner, 22.

^[2]
Petition, 5.

^[3]
Memorandum for Petitioner, 16-17.

^[4]
Decision, 2.

^[5]
Cf. Demaronsing v. Tandayag,
L-27057, Aug. 21, 1974, 58 SCRA 484; De Borja v.
Flores, 62 Phil. 106 (1935); De Borja v. Tan,
93 Phil. 167 (1953); Flash Taxicab Co. v. Cruz, L-15464, March 30, 1963,
7 SCRA 518; Caltex (Phil.) Inc. v. Castillo,
L-24657, Nov. 27, 1967, 21 SCRA 1071;
Batangas Laguna Tayabas Bus
Co. v. Cadiao, L-28725, March 12, 1968, 22
SCRA 987; Maglasang v. Ople,
L-38813, April 29, 1975, 63 SCRA 508; Nation Multi Service Labor Union v.
Agcaoili, L-39741, May 30, 1975, 64 SCRA 274.

^[6]
Comment, 2.  The
Solicitor General was assisted by Assistant Solicitor General Reynato S. Puno and Solicitor
Jesus V. Diaz.

^[7]
Ang Tibay v. Court of Industrial Relations, 69 Phil. 635
(1940).

^[8]
The Ang Tibay doctrine was
subsequently followed in Antamok Goldfields Mining
Co. v. CIR, 70 Phil. 340 (1940); Manila Trading and Supply Co. v.
PLU, 71 Phil. 124 (1940); Mindanao Bus Co. v. MBC Empls.
Asso., 71 Phil. 168 (1940); Manila Trading Co. v.
PLU, 71 Phil. 578 (1941); Leyte Land Trans. Co. v.
Leyte Farmers & Laborer’s Union, 80 Phil. 842
(1948); Shell Co. v. NLU, 81 Phil. 315 (1948); Phil. Educ.
Co. v. CIR, 94 Phil. 73 (1953); Lakas Ng Pagkakaisa sa Peter Paul v.
CIR, 96 Phil. 63 (1954); Dimayuga v. CIR, et
al., 101 Phil. 590 (1957); NLU v. OSCO Workers Fraternity Labor Union,
110 Phil. 627 (1960); NDC v. Collector of Customs, 118 Phil. 1265 (1963)
Timbangcaya v. Vicente, 119 Phil. 169 (1963); Vigan Electric Light Co., Inc. v. PDC, L-19850, Jan.
30, 1964; 10 SCRA 46; Lustre, et al. v. CAR,
L-19654, March 31, 1964, 10 SCRA 659; Commissioner of Immigration v.
Hon. Fernandez, L-22696, May 26, 1964, 11 SCRA 184; Borja
v. Moreno, L-16487, July 31, 1964, 11 SCRA 568; Santos v.
Secretary of Public Works, L-16949, March 18, 1967, 19 SCRA 637; Phil. Air
Lines, Inc. v. CAB, L-24321, July 21, 1967, 20 SCRA 849; Ermita-Malate Hotel and Motel Operators Asso.
v. City Mayor, L-24693, July 31, 1967, 20 SCRA 849; Caltex
(Phil.), Inc. v. Castillo, L-24657, Nov. 27, 1967, 21 SCRA 1071; Palanan Lumber & Plywood Co., Inc. v. Hon. Arranz, L-27106, March 20, 1968, 22 SCRA 1186; Caltex Filipino Mgrs. & Supvs.
Asso.
v. CIR, L-28472, April 30, 1968, 24 SCRA 867; Phil. Air Lines v.
CAB, L-24219, June 13, 1968, 24 SCRA 992; Alalayan v.
NPC, L-24396, July 29, 1968, 24 SCRA 172; Serrano v. PSC, L-24165, Aug.
30, 1968, 24 SCRA 867; Gracilla v. CIR,
L-24489, Sept. 29, 1968, 25 SCRA 242; Sanchez v. CIR, L-26932, March 28,
1969, 27 SCRA 490; Mateo v. Moreno, L-21024, July 28, 1969, 28 SCRA 769;
Lakas ng Mangga­gawang Makabayan v.
Court of Industrial Relations, L-32178, Dec. 28, 1970, 36 SCRA 600.

^[9]
L-21064, February 18, 1970, 31 SCRA
413.

^[10]
Ibid.