NAPOLEON V. FERNANDO, ANDRES DIZON, TOMAS F. FALCONITIN AND PATERNO ADAP, MEDIATOR ARBITERS, NATIONAL CAPITAL REGION, DEPARTMENT OF LABOR AND EMPLOYMENT, PETITIONERS, VS. HON. P…

The present petition for certiorari seeks to annul: (a) Resolution No. 93-4480^[1] of the Civil Service Commission,
dated October 12, 1993, which declared the reassignment of petitioners valid
and legal; (b) the Order, dated July 26, 1993,^[2] of the Secretary of Labor, Hon. Ma.
Nieves R. Confesor, placing petitioners under preventive suspension for ninety
(90) days pending investigation of the charge against them for gross
insubordination; and (c) the Order, dated October 25, 1993,^[3] of
the said Secretary of Labor finding petitioners guilty of two counts of gross
insubordination and accordingly suspending them for one (1) year.

Petitioners were appointed as Mediator Arbiters in the National
Capital Region and, as such, were discharging their duties as hearing officers
when respondent Labor Secretary Confesor issued on May 26, 1993 Memorandum
Order No. 4^[4]
reassigning several med-arbiters,
including herein petitioners, which reads as follows:

“In the interest of the service and in order to expedite the
resolution of inter-union and intra-union cases, the following assignment of
Med-Arbiters is hereby being made effective immediately:

Appeals and Review
Unit, OS:

Andres Dizon

Tomas Falconitin

Napoleon Fernando

Bureau of Labor
Relations:

Paterno Adap

National Capital
Region

Brigida Fadrigon

Angeli Tuyay

Region IV:

Anastacio Bactin”

x x x

Med-Arbiters Brigida Fadrigon, Angeli Tuyay and Anastacio Bactin
promptly complied with the memorandum order. However, petitioners, in a letter dated June 7, 1993,^[5]
sought the reconsideration and recall of said memorandum order on the ground
that their reassignments were made without their consent, which was accordingly
tantamount to removal without just cause.

On June 23, 1993, respondent Secretary of Labor issued another
Memorandum^[6]
declaring and clarifying that Memorandum Order No. 4 contemplates, not a
transfer as erroneously alleged, but a mere reassignment wherein the consent of
petitioners is not required, and ordering petitioners to report to their new
assignments and to turn over all records of cases and other documents in their
possession.

Petitioners, however, refused to comply and instead wrote another
letter, dated June 28, 1993,^[7]
seeking the reconsideration of Memorandum Order No. 4 and the Memorandum of
June 23, 1993, on the ground that the same were issued in violation of their
rights to security of tenure and due process of law.

Acting on petitioners’ letter, respondent Secretary issued
another Memorandum, dated July 7, 1993,^[8] denying their request and directing
them to show cause why they should not be administratively charged for gross
insubordination.

On July 12, 1993, petitioners filed an appeal^[9] with
the Merit System and Protection Board (MSPB) of the Civil Service Commission
(CSC), and a supplemental appeal^[10]
dated July 19, 1993.

On July 15, 1993, petitioners submitted their explanation in
compliance with the Memorandum of July 7, 1993, arguing that they could not
accept their reassignment considering that the same is unconstitutional,
illegal and without valid cause; that quasi-judicial officers may not be
transferred or reassigned except
on grounds provided by law; and that the law provides that pending their appeal
to the Civil Service Commission,
their transfer or reassignment should
be held in abeyance.

On July 26, 1993, petitioners were formally charged with gross
insubordination and, pending investigation, were placed under preventive
suspension for ninety (90) days.

On October 12, 1993, the CSC issued its questioned resolution
finding the reassignment of petitioners valid and legal and, consequently,
dismissed their appeal for lack of merit.

On October 25, 1993, respondent Secretary issued another Order
finding petitioners guilty of two counts of gross insubordination and
accordingly suspending them from the service for one (1) year.

Hence, this petition assailing the foregoing resolution and
orders.

Petitioners first contend that the CSC has no jurisdiction to
review on appeal the aforestated Memorandum Order No. 4 as the same is vested
in the MSPB pursuant to Section 13, Book V of Executive Order No. 292
(Administrative Code of 1987). There is
no merit in the argument.

Resolution No. 93-2387^[11] of
the CSC, which took effect on July 1, 1993, declared the abolition of the MSPB
in order to streamline the operations of the CSC, so as to achieve a speedier
delivery of administrative justice and economical operation without impairing
due process and the substantive rights of the parties in administrative
cases. Henceforth, decisions in
administrative cases involving officials and employees of the civil service
appealable to the Commission, including personnel actions, shall be appealed
directly to the Commission and not to the MSPB, and those cases which have been
appealed or brought directly to the MSPB shall be elevated to the Commission
for final resolution. In the present case, petitioner’s appeal was
filed only on July 12, 1993 when Resolution No. 93-2387 was already in
effect. Perforce, their appeal was
considered filed before the CSC.

Petitioners claim that there was malice, bad faith, undue
influence and partiality in the issuance of the order for reassignment and its
affirmance by the CSC. They aver that
there was undue influence exerted by respondent Secretary and that the CSC
acted with partiality because respondent Secretary and CSC Chairman Sto. Tomas
are personal friends, aside from the fact that during the pendency of their
appeal with the CSC, the latter issued legal opinions through its Director for
Legal Affairs concerning the very issues involved in the appeal even before the
same could be officially resolved. Furthermore, petitioner Fernando specifically asserts that the
reassignment was actually in retaliation for the independent stance he has
taken in Case No. OD-M-9301-028 (APSOTEU vs. EEI) pending before him wherein he
ordered the cancellation of the certificate of registration of APSOTEU. These allegations of petitioners should be
considered as mere speculations and conjectures, no substantial evidence having
been presented in support thereof.

The reassignment of petitioners was made “in the interest of
the service and in order to expedite the resolution of inter-union and
intra-union cases.” That the order was issued for this purpose is even
presumed under Civil Service rules where there is no proof of harassment,
coercion, intimidation, or other personal reasons therefor.

Additionally, public respondents have in their favor the
presumption of regularity in the performance of official duties which
petitioners failed to rebut when they did not present evidence to prove
partiality, malice and bad
faith. Bad faith can never be presumed;
it must be proved by clear and convincing evidence. No such evidence exists in the case at bar. The circumstances attending the issuance of
Memorandum Order No. 4 do not in any way reveal any malicious intent on the
part of respondent Secretary. On the
contrary, we consider her actions as a valid exercise of her power and
authority as department head to take and enforce personnel actions.

It is likewise argued that the reassignment of petitioners is
tantamount to their constructive dismissal because it was effected without
their consent. In the case of Bentain vs. Court of Appeals,^[12] we
categorically held that a reassignment
in good faith and in the interest of the government service
is permissible and valid even without the employee’s prior consent.

The reassignment is also challenged as being illegal because it
involves a reduction in rank and status, and it violates the right to security
of tenure and to due process of law. Petitioners contend that with the reassignment, their functions were
changed from those of a hearing officer to the drafting of decisions appealed
to the Secretary. In their view, they
were in effect demoted.

A demotion, under Section 11, Rule VII of the Omnibus Rules
Implementing Book V of Executive Order No. 292, is defined as the movement from
one position to another involving the issuance of an appointment with diminution in duties, responsibilities,
status or rank which may or may not involve reduction in salary. On the other
hand, Section 10 of the same rule defines a reassignment as the movement of an
employee from one organizational unit to another in the same department or
agency which does not involve a reduction in rank, status, or salary and does
not require the issuance of an appointment. A demotion, therefore, involves the issuance of an appointment.

In the case at bar, it is clear and undisputed that no new
appointments were issued to herein petitioners. Hence, it is incorrect for them to claim that they were
demoted. Moreover, petitioners failed
to sufficiently establish that there was a reduction in their salary. They
would want to suggest that there
was a diminution in rank in the sense that their present assignment as drafters
of decisions on appeal to the
Secretary are subject to review by higher authority, whereas in their former
assignment as hearing officers, they themselves render judgment. Petitioners seem to forget that the
decisions of hearing officers are also subject to review by the National Labor
Relations Commission. Thus unmasked,
their argument has definitely no leg to stand on.

Petitioners were appointed as Mediator Arbiters in the National
Capital Region. They were not, however,
appointed to a specific station or particular unit of the Department of Labor
in the National Capital Region (DOLE-NCR). Consequently, they can always be reassigned from one organizational unit
to another of the same agency where, in the opinion of respondent Secretary,
their services may be used more effectively. As such they can neither claim a vested right to the station to which
they were assigned nor to security of tenure thereat. As correctly observed by the Solicitor General, petitioners’
reassignment is not a transfer for they were not removed from their position as
med-arbiters. They were not given new
appointments to new positions. It
indubitably follows, therefore, that Memorandum Order No. 4 ordering their
reassignment in the interest of the service is legally in order.

Whatever alleged procedural infirmity may have rendered defective
the issuance of Memorandum Order No. 4 has been cured when petitioners filed
two motions for reconsideration seeking to recall the same. The two motions were duly considered,
discussed and resolved by respondent Secretary. Petitioners were thereby afforded full opportunity to present
their arguments against the issuance of said order.

Finally, we do not deem it appropriate to rule on the merits of
the order issued on July 26, 1993 by respondent Secretary preventively
suspending petitioners for ninety (90) days, as well as her subsequent order
dated October 25, 1993 finding petitioners guilty of insubordination and
imposing on them the penalty of suspension of one (1) year. Evidently, herein petitioners, in asking us
to resolve the issues thereon in their present recourse, have overlooked or
deliberately ignored the fact that the same are clearly dismissible for
non-exhaustion of administrative remedies.

On the first aspect, petitioners allowed the 90-day period of preventive
suspension to lapse without appealing from the Order of July 26, 1993. In fact, the investigation which
necessitated such suspension has long since been concluded and thereafter
resulted in the condemnatory Order of October 25, 1993. Hence, they are now clearly estopped from
invoking the certiorari jurisdiction of this Court in a belated attempt
to seek redress from the first Order.

Secondly, as stated earlier, the Order dated October 25, 1993
imposing a punitive suspension of one year on herein petitioners cannot
be the proper subject of a petition for certiorari for their failure to
exhaust administrative remedies. Presidential Decree No. 807 and Executive Order No. 292 explicitly
provide that administrative disciplinary cases involving the imposition of a
penalty of suspension for more than thirty (30) days are appealable to the
Civil Service Commission.^[13] Not
having fully exhausted the remedy available to them, petitioners cannot resort
to their present judicial action which is both premature at this juncture and
proscribed by Rule 65 of the Rules of Court. Neither do we find any of the exceptions to the doctrine of exhaustion
of administrative remedies which could be applicable to the instant case, nor
have petitioners essayed any submission on that score.

WHEREFORE, no jurisdictional error or any grave
abuse of discretion having been shown to have flawed or tainted the impugned
resolution of respondent Chairman of the Civil Service Commission or the
challenged orders of respondent Secretary of Labor, the present petition for certiorari
is hereby DISMISSED.

SO ORDERED.

Navasa, C.J., Cruz, Feliciano, Padilla, Bidin, Davide, Jr.,
Romero, Melo, Quiason, Puno, Vitug, Kapunan, and
Mendoza, JJ., concur.

Bellosillo, J., on leave.

^[1]
Annex A, Petition; Rollo, 47.

^[2]
Annex S, id.; ibid., 173.

^[3]
Annex B, id.; ibid., 49.

^[4]
Annex I, id.; ibid., 98.

^[5]
Annex J, id.; ibid., 99.

^[6]
Annex L, id.; ibid., 112.

^[7]
Annex M, id.; ibid., 115.

^[8]
Annex O, id.; ibid., 161.

^[9]
Annex N, id.; ibid., 125.

^[10]
Annex N-1, id.; ibid., 152.

^[11]
This was issued pursuant to Section 17, Book V, Administrative Code of 1987, which
provides that “as an independent Constitutional body, the Commission may effect
the changes in the organization as the need arises.”

^[12]
G.R. No. 89452, June 5, 1992, 209 SCRA 644.

^[13]
Section 37, Presidential Decree No. 807 and Section 47, Executive Order No. 292.