G.R. No. 52439. July 12, 1991
PHILIPPINE NATIONAL BANK (PNB), NORMA A. VICTORINO, DIOSDADO SOLIDUM, JR., DANTE FAJARDO, AND GERMAN FABELLA, THE LATTER IN THEIR OFFICIAL CAPACITIES AS OFFICERS OR EMPLOYEES O…
NARVASA, J.:
Fifty-one years ago, this
Court laid down what it considered the “cardinal primary rights” of
due process which must be accorded to parties in
“trials and investigations of an administrative character,” which
have since been observed and applied with undeviating constancy.[1] These, as simply and succinctly stated by an
acknowledged authority on Constitutional Law,[2] are:
“(1) The right to a hearing, which includes the
right to present one’s case and submit evidence in support thereof.
(2) The
tribunal must consider the evidence presented.
(3) The
decision must have something to support itself.
(4) The
evidence must be substantial.
(5) The
decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected.
(6) The
tribunal or body or any of its
judges must act on its or his own independent consideration of the law and
facts of the controversy and not simply accept the views of a subordinate in
arriving at a decision.
(7) The
board or body should, in all controversial questions, render its decision in
such a manner that the parties to the proceeding can know the various issues
involved, and the reason for the decision rendered.”
Whether or not these norms were met by the petitioners in the
matter of the removal of Primitivo Virtudazo from his employment as credit investigator/inspector
of the Philippine National Bank (PNB), Dipolog City
Branch, is the principal issue in the special civil action of certiorari
at bar, initiated by petition of the Bank and some of its officers. The petition was given due course.[3]
The controversy originated from a “Memorandum of
Specification of Charges” issued by Norma A. Victorino
(Assistant Vice President and Manager of the Personnel Administration
Department, PNB), which was served on Virtudazo, then
employed, as aforestated, as credit investigator of
PNB at its Dipolog Branch.[4]
The memorandum read as follows:[5]
“This Office has found, after an evaluation of official
reports, that a prima facie case exists against you for Dishonesty
and Violations of Bank Rules and Regulations, committed as follows:
“On falsification of overtime record of attendance –
* * *
“On authorized punching of bundy
clock time card.”
Seasonably, and thru the Manager of the Dipolog
Branch, German Fabella, Virtudazo
submitted a verified answer to which were attached copies of documents in
support of his defenses.[6]
The answer “directly travers(ed) * * and den(ied) point by point the charges against him (and)
explain(ed) also that the error or discrepancy subject of the charges was due
to –
(a) mechanical defect or faulty functioning of the
office bundy time clock caused by continuous or
intermittent electric power failures or interruptions of the Visayan Electric Co., Inc.; and
(b) he
did not authorize Mr. Rolando Palomares, a
co-employee, to punch-in his (Virtudazo’s) time
card.”
Some two (2) months later, two of PNB’s
personnel examiners, Diosdado Solidum,
Jr. and Dante Fajardo, went to Dipolog City
to conduct a fact-finding investigation in connection with the charges against Virtudazo.[7]
They interviewed and took down the statements of four (4) PNB employees,
namely: Rolando Palomares;
Constancio Adaro; Jaime Allesa; and Jose Nolido; this, in
the absence of Virtudazo.[8]
Virtudazo requested that he be allowed
to confront and examine the witnesses thus interviewed. He was told that the investigation was merely
a fact-finding inquiry and a formal investigation would follow. He was not given a copy of the witnesses’
statements.[9]
What happened instead was that Virtudazo
was told that he would be the next person interrogated. He asked for time to engage counsel which was
grudgingly given. He went to a few
lawyers of his choice, but as fate would have it, they had other commitments. Virtudazo finally
prevailed on Atty. Vicente Lubrico, whose offices
happened to be near those of the PNB Dipolog Branch,
just to be present during his questioning.
He was thus interrogated by Messrs. Solidum
and Fajardo, represented by an attorney who had no prior notion of
the nature of the investigation or of the evidence against his client.[10]
Virtudazo then asked that certain
persons be called by Solidum and Fajardo
as his witnesses. Again he was told he
could present witnesses at the formal investigation to be later scheduled.[11]
Notice of that formal
investigation never came; this, notwithstanding the recommendation of the
fact-finding team that “(i)n view of the
flagrant violation of Bank rules and regulations, * * (the team was)
recommending that this matter be endorsed to the Personnel Administration
Department for formal investigation.”[12]
What he did get, on June 27, 1978 was a “memorandum” dated June 15,
1979, addressed to him (“Thru: Mr.
R.G. Perez, Vice President, Mindanao Regional Office”) and signed by Antonio F. Arce,
as Officer-in-Charge, Personnel Administration Department,[13]
the memorandum pertinently reading as follows:
“SUBJECT : ADMINISTRATIVE
CASE –
This is to inform you that, under B/Res.
No. 853 of May 31, 1978,
you were found guilty of –
1. Dishonesty for falsifying your overtime record
of attendance on March 25, 30 & 31, 1977; and
2. Violation of Bank Rules and Regulations for
authorizing Mr. Rolando Palomares, NASECO Messenger
to punch-in your time card on your scheduled overtime from June 14 to 16, 1977.
Accordingly, as penalty, under said B/Res
No. 853, it was –
‘RESOLVED, That, as the respondent has been found guilty as charged
of Dishonesty and Violation of Bank Rules and Regulations, Mr. Primitivo Virtudazo be dismissed
from the service of the Bank, without benefits and with prejudice to
reinstatement, effective upon receipt of notice.
On July 11, 1978,
Virtudazo filed thru counsel a motion for the
reconsideration of the decision as laconically described in the
memorandum. In his motion for
reconsideration, he referred to the memorandum as “the Decision”
which he had received on June 27, 1978.[14]
His motion was denied by the PNB Board on December 11, 1978, a fact communicated to Virtudazo by letter dated January 10, 1979.[15]
Fifteen days later, Virtudazo’s counsel
wrote to the Bank asking to be furnished with a copy of the Board’s decision
itself so that he might either appeal to the Civil Service Commission or resort
to judicial action. The letter was never
answered. He and his counsel also went
to the Bank’s main offices at Manila,
to try to get a copy of the decision.
They saw several officers, Atty. Severino Cancio, Atty. Artemio Tipon, Atty. Catalan, but never succeeded in getting a copy
of the decision.[16]
Virtudazo then filed a complaint with
the Court of First Instance at Dipolog
City against the PNB and certain of
its officers praying for reinstatement to his former position and the payment
of damages.[17]
He also alleged that “no appeal could as yet be made to the Civil Service
Commission as no decision was furnished to plaintiff from which an appeal could
be taken.”
The defendants filed an answer setting forth specific denials and
such affirmative defenses as failure to exhaust administrative remedies and
that defendants had “acted in accordance with law.”[18]
After due proceedings, the Trial Court issued a pre-trial order
assigning several dates for the trial of the case.[19]
In that same order, the Court pointed out that a formal investigation should
have, but was not, conducted; the prior, preliminary fact-finding inquiry was held
“secretly, without the presence of the plaintiff,” depriving him
“of his right to cross-examine ** (the) witnesses” interrogated; and
that the plaintiff had not been served with copy of the decision.
Two (2) motions for reconsideration of that order were filed for
the defendants by the PNB lawyers,[20]
and their attorneys based at Dipolog
City.[21]
They alleged that Virtudazo’s claim that he had not
been given a copy of the decision was untrue, for he had filed a “Motion
for Reconsideration and/or New Trial” in which he declared that he had
“received a copy of the
Decision on June 27, 1978, and this motion for reconsideration and/or new trial
is filed well within the reglementary period.”[22]
The PNB and its co-defendants insisted that –
1) jurisdiction over the case was lodged, not in the Trial Court,
but in the Merit System Board created by PD No. 1409;
2) Virtudazo had no cause of action
against them because –
a) he had failed to exhaust administrative
remedies by omitting to elevate “his case to the Merit System Board/Civil
Service Commission; and
b) the administrative charge against him being
serious and the evidence of his guilt strong, “his summary dismissal was
sanctioned under Section 40 (a) of Presidential Decree No. 807.”
The motions were denied by the Trial Court.[23]
The Court reiterated its view that Virtudazo
“was never investigated formally;” that the receipt by him of a copy
of the decision was “no argument
that the decision has been rendered after a formal investigation of the charges
against him;” that he could not appeal to the Merit System Board
“because he was not formally investigated and because he had been
dismissed * * before his receipt of copy of said decision, at which time the reglementary period for appeal ** had already lapsed;”
and that Section 38 (c) of PD 807 “is very explicit as to the holding of a
formal investigation although a respondent ** makes no request for it when from
the allegations of the complaint and his answer thereto ** the merits of the
case cannot be decided judiciously without conducting such an
investigation.”[24]
It is this resolution which the petitioners would have this Court
nullify and set aside in the certiorari action at bar.
The evidence discloses that the two personnel examiners sent by the
Bank’s Main Office to the Dipolog Branch to conduct a
fact?finding inquiry into the charges against Virtudazo
were explicitly asked by the latter that :
(1) he be given time to retain counsel of his choice before he was
interrogated; (2) he be permitted to confront and cross-examine the witnesses
interviewed, or at least be given a copy of their written statements; and (3)
certain persons be called and interviewed as his (Virtudazo’s)
own witnesses.[25]
All these requests were peremptorily turned down with the assurance, however,
that a formal investigation would later be scheduled at which he could
presumably be represented by counsel selected at more leisure, confront and
cross-examine the witnesses against him, and adduce evidence in his own behalf. Indeed, the personnel examiners did
subsequently recommend that Virtudazo’s case be
referred to the Personnel Administration Department for formal investigation.[26] The record further discloses that no
formal investigation was ever scheduled and the PNB Board’s decision dismissing
Virtudazo was rendered without that formal
investigation ever being held.
The record further reveals that despite Virtudazo’s
repeated and insistent requests, he was never given a copy of the decision of
the PNB Board of Directors, mentioned in the Memorandum of Antonio F. Arce, the Officer in Charge of the Bank’s Personnel
Administration Department, supra.[27]
The petitioner Bank would however justify its dismissal of Virtudazo without formal hearing by adverting to Section 40
(a) of Presidential Decree No. 807, viz.:
“SEC. 40. Summary
Proceedings. — No formal
investigation is necessary and the respondent may be immediately removed or
dismissed if any of the following circumstances is present:
(a) When the charge is serious
and the evidence of guilt is strong.
* * * * * .”
The trouble is, the Bank’s own fact-finders, despite their
opinion that prima facie there had been “flagrant
violations of Bank rules and regulations,” had recommended that a formal
investigation be conducted. That recommendation
was obviously impelled by the fact that Virtudazo’s
formal answer had traversed the accusations against him and there was a not
unreasonable possibility that if allowed to present evidence, as he was then
demanding, the allegations of that answer would be substantiated and destroy
the prima facie evidence of guilt collated by the
fact-finders. Implicit in that
recommendation, in other words, is that although standing alone, the proofs of Virtudazo’s guilt were strong, the possibility could not be
discounted that said proofs could be overcome by the evidence that Virtudazo was insisting on submitting. Be this as it may, the recommendation of the
very investigators of the Bank that a formal hearing be had of the charges is
inconsistent with the subsequent view expressed by the Bank that no such formal
hearing was necessary, a virtual assertion that it was inutile to allow Virtudazo to adduce evidence as no proof on his part could
possibly negate the proofs already gathered by the investigators against him.
Upon these considerations, the Court holds inapplicable the
provisions of Section 40 (a) of PD 807, invoked by petitioner Bank. Given the facts, the provisions properly
applicable are paragraphs (a) and (c) of Section 38, PD 807, reading as
follows:
“SEC. 38. Procedure
in Administrative Cases Against Non-Presidential Appointees. — (a) Administrative proceedings may be
commenced against a subordinate officer or employee by the head of department
or office of equivalent rank, or head of local government, or chief of
agencies, or regional directors, or upon sworn, written complaint of any other
persons.
* * * * * .
(c) Although a respondent does not request a
formal investigation, one shall nevertheless be conducted when from the
allegations of the complaint and the answer of the respondent including the
supporting documents, the merits of the case cannot be decided judiciously
without conducting such an investigation.
* * * * * .”
The Bank contends, too, that Virtudazo’s
failure to exhaust administrative remedies is fatal to his judicial
action. The contention is rendered
innocuous and inconsequential by the circumstance established in the record
that Virtudazo had been denied due process. As already pointed out, he was not given a
copy of the judgment discharging him from his employment on account of serious
misconduct, hence, he was not informed of the various issues involved and the
reason for the decision rendered; neither was the evidence on which that
decision was based disclosed to him; and he was not accorded an opportunity to
present his case and submit evidence in his behalf, and not given a copy of the decision. The proceedings having been conducted without
according to Virtudazo the “cardinal primary
rights of due process” guaranteed to every party in an administrative or
quasi-judicial proceeding,[28] said proceedings must be pronounced null and
void. The case thus comes within one of
the recognized exceptions to the doctrine of exhaustion of administrative
remedies, i.e.: the administrative
action for which relief is sought is so patently illegal as to be deemed to
have been done without or in excess of jurisdiction,[29] or the question involved is purely a legal
one.[30]
WHEREFORE, the petition for certiorari is
DENIED for lack of merit, with costs against petitioners.
SO ORDERED.
Cruz, Griño-Aquino, and Medialdea, JJ., concur.
Gancayco, J., on official leave.
[1]
Ang Tibay v.
C.I.R., 69 Phil. 635 (1940), per Laurel, J.
[2]
My distinguished colleague, Mr. Justice Isagani A. Cruz: Constitutional Law, 1987
ed., pp. 111-112
[3]
By this Court’s Resolution of June 2,
1980.
[4]
Rollo, pp. 16, 35.
This was sometime in January, 1978
[5]
Id., pp. 16-17, 35, 52, 106
[6]
Id., pp. 17, 35, 57, 106-107. The answer was submitted on Jan. 17,
1978.
[7]
Id., pp. 17, 36, 57, 107, 210
[8]
Id., pp.
57-58, 107
[9]
Id., pp.
107, 59.
[10]
Id., pp. 37, 58
[11]
Id., pp.
37-38, 59, 151
[12]
Id., p.
58
[13]
Id., p.
122. At the left hand margin appears the
signature of Virtudazo acknowledging receipt of the
memorandum at 8:15 A.M. on June 27,
1978. SEE also, pp. 17 (Par. 5, petition); 39, 66,
75-76, 96 of the same rollo.
[14]
Id., pp. 65-66, 75-76, 159
[15]
Id., p. 18
[16]
Id., pp. 40-41, pp. 59-60
[17]
Id., pp. 34-43.
The complaint was filed on March 12, 1979 and was docketed as Civil Case No. 3094.
[18]
Id., pp. 44-50
[19]
Id., pp. 51-62
[20]
Id., pp. 63-74
[21]
Id., pp. 75-81
[22]
Id., pp. 65-66; also, pp. 75-76
[23]
Id., pp. 94-97
[24]
Reconsideration of this resolution sought
by PNB and its co-defendants was subsequently denied, by another resolution
dated December 21, 1979.
[25]
SEE footnotes 9-11 and related text, supra
[26]
SEE footnote 5 and related text, supra
[27]
SEE footnote 13
[28]
SEE opening paragraph of this opinion.
[29]
Siliman University v. Benarao,
et al., G.R. No. 46613, Feb. 26, 1990; Mangubat v.
Osmeña, 105 Phil. 1308 (unrep.);
Baguio v. Rodriguez, 105 Phil. 1323 (unrep.)
[30]
Pascual v. Provincial Board of Nueva Ecija, 106 Phil. 466;
Prudential Bank v. Gapultos, G.R. No. 41835
and Prudential Bank v. Serrano, G.R. No. 49293, Jan. 19, 1990; Cebu Oxygen & Acetyline Co.,
Inc. v. Drilon, et al., G.R. No. 82849, Aug.
2, 1989