MARIA B. LUPO, PETITIONER, VS. ADMINISTRATIVE ACTION BOARD (AAB) (DEPARTMENT OF TRANSPORTATION & COMMUNICATIONS REPUBLIC OF THE PHILIPPINES) AND JUSTICE ONOFRE A. VILLALUZ, RESP…

In this petition for prohibition, petitioner seeks the issuance
of an order or writ of prohibition which would direct public respondents
Administrative Action Board and Chairman Onofre A. Villaluz to permanently desist from assuming jurisdiction
over Adm. Case No. AAB-034-88 until the same is finally disposed of by the
Telecoms Office, Region V at Legaspi
City and to refrain from issuing
orders setting the aforecited case for hearing.

Petitioner substantially assails the Resolution dated September
30, 1988 of then Secretary Rainerio O. Reyes of the
Department of Transportation and Communications which suspended her for one
year and disqualified her for promotion for a period of one year and also, the
Order of July 5, 1989 of Chairman Onofre A. Villaluz of the Administrative Action Board of said
department which set Adm. Case No. AAB-034-88 for trial.

The prefatory facts are:

On November 5, 1987,
Fructuoso B. Arroyo, OIC/CDO, Message
Center and then CDO of Telecom
Office stationed at Buhi, Camarines
Sur, filed a complaint for Dishonesty Thru
Falsification (Multiple) of Official. 
Documents against Maria B. Lupo, herein
petitioner, as Chief of Personnel Section, Telecom Office, Region
V at Legaspi
City.  The complaint was based on the alleged
exclusion of several names from the Certification (on the list of employees)
submitted by petitioner in compliance with a Confidential Memorandum of
Director Claro Morante.

The aforesaid complaint was actually triggered off by the inquiry
of Ignacio B. Arroyo, brother of complainant Fructuoso
B. Arroyo, into the alleged illegal termination of the former’s
niece, Nenita Arroyo Noceda,
as a daily wage clerk at Buhi Telecom Exchange in Camarinea Sur, in violation of a
contract previously entered into between a certain Gloria D. Palermo, lot donor
and former Bureau Director Ceferino S. Carreon, donee of the lot.  The lot is located at Sta. Clara, Buhi on which the Telecom Office was to be
constructed.  This inquiry of Ignacio B.
Arroyo was dismissed for lack of merit on September 16, 1987.

It appears that the basis for the complaint of Fructuoso Arroyo from whom Ignacio sought assistance was
petitioner’s exclusion of certain names of newly hired employees in Region V
who appeared related to certain ranking officials of the region, for the
purpose of keeping under wraps the appointment of said employees from Ignacio
Arroyo who had previously complained of the alleged illegal termination of his
niece Nenita A. Noceda.  Petitioner had to falsify the list which she
submitted in compliance with Regional Director Morante’s
Confidential Memorandum to the alleged prejudice of Noceda
and for the purpose of protecting her future interest in the sense that those
excluded (who should have been included) were close relatives of ranking
officials of the Telecommunications Office of Region V Telecom Investigator Florencio Calapano, acting on the
unverified complaint of Fructuoso Arroyo, conducted
an informal fact-finding inquiry and came out with a Memorandum recommending
that petitioner be sternly warned that a repetition of a similar offense in the
future would be dealt with more drastically and that the case should be
considered closed.

Based solely on the aforesaid Memorandum, the Secretary of the
Department of Transportation and Communications handed down a Resolution on
September 30, 1988 finding petitioner “guilty as charged” and suspending
her for one year and disqualifying her for promotion for a period of one
year.  Petitioner moved for
reconsideration of the resolution but the same was denied.  She thus appealed the resolution and order of
denial of the motion for reconsideration to the Civil Service Commission for
review, anchoring her appeal on lack of due process in the proceedings.

On March 2, 1989,
the Civil Service Commission, thru its Merit Systems Board, issued the Order
setting aside the resolution of the Department of Transportation and
Communications and remanding the case to the Telecom Office of Region V for
further investigation to conform with the procedural
requirements of due process.

Instead of complying the above order,
respondent Chairman Villaluz of the AAB issued the
Order of July 5, 1989
setting the case for trial on August 3,
1989.

On August 2, 1989,
petitioner filed a Manifestation and Motion informing respondent Villaluz that no formal charge had been instituted by the
Telecommunications Office against her and respondents, therefore, had no
jurisdiction over the case.  Respondents
denied said manifestation and motion for lack of merit in the Order of August 7, 1989 and again set the case
for hearing on August 23, 1989.

Hence, this petition.

Petitioner avers that respondent AAB never acquired jurisdiction
over Adm. Case No. AAB-034-88 because of the absence of a
formal charge against her and that the proceedings conducted by Regional
Investigator Florencio Calapano
was a mere fact-finding inquiry.

Respondent Chairman of the AAB, however, contends that the Order
of the Merit Systems Board of the Civil Service Commission was rendered without
lawful authority since petitioner’s appeal to said Board was filed when the
assailed resolution had already become final and executory;
that the Board, not having acquired jurisdiction to entertain the appeal for
having been filed beyond the reglementary period
could not have legally rendered its decision in the said administrative
case.  Likewise, respondents claim that
Regional Office No. V could no longer take cognizance of the case as per order
of the Merit Systems Board for the reason that the decision had already become
final and executory.

Complaints against employees, like petitioner herein, who belong
to the Civil Service Career System are still governed
by P.D. No. 807.  This mandate of P.D.
No. 807 has been recognized and implemented by respondent Administrative Action
Board when it declared in Office Order No. 88-318 dated July 1, 1988 that the Board shall observe
the pertinent civil rules and policies
designed to expedite action on cases referred
to it.  (Underscoring
supplied)

The pertinent provisions of the aforecited
Civil Service Law read as follows:

“SECTION 37. Disciplinary
Jurisdiction.- (a) The Commission shall decide upon
appeal all administrative disciplinary cases involving the imposition of a
penalty of suspension for more than thirty days, or fine in an amount exceeding
thirty days salary, demotion in rank or salary or transfer, removal or
dismissal from office.  A complaint may
be filed directly with the Commission by a private citizen against a government
official or employee in which case it may hear and decide the case or it may
deputize any department or agency or official or group of officials to conduct
the investigation.  The results of the
investigation shall be submitted to the Commission with recommendation as to
the penalty to be imposed or other action to be taken.

“(b) The heads
of departments, agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters
involving disciplinary action against officers and employees under their jurisdiction.  Their decisions shall be final in case the
penalty imposed is suspension for not more than thirty days or fine in an
amount not exceeding thirty days salary. 
In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially
appealed to the department and finally to the Commission and pending appeal,
the same shall be executory except when the penalty
is removal, in which case the same shall be executory
only after confirmation by the department head.

“(c)  An investigation may be entrusted to regional
director or similar officials who shall make the necessary report and
recommendation to the chief of bureau or office or department within the period
specified in Paragraph (d) of the following Section.

“(d)  An appeal shall not stop the decision from
being executory, and in case the penalty is
suspension or removal, the respondent shall be considered as having been under
preventive suspension during the pendency of the
appeal in the event he wins an appeal.

“SECTION 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 chiefs of agencies, or
regional directors, or upon sworn, written complaint of any other persons.

“(b)  In the case of a complaint filed by any other
persons, the complainant shall submit sworn statements covering his testimony
and those of his witnesses together with his documentary evidence.  If on the basis of such papers a prima
facie case is found not to exist, the disciplining authority shall
dismiss the case.  If a prima facie
case exists, he shall notify the respondent in writing, of the charges against
the latter, to which shall be attached copies of the complaint, sworn
statements and other documents submitted, and the respondent shall be allowed
not less than seventy-two hours after receipt of the complaint to answer the
charges in writing under oath, together with supporting sworn statements and
documents, in which he shall indicate whether or not he elects a formal
investigation if his answer is not considered satisfactory.  If the answer is found satisfactory, the
disciplining authority shall dismiss the case.

“(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. 
x x x“

Petitioner’s contentions appear meritorious.

It should be noted that under Section 37 (b) as aforequoted, the decisions of heads of departments become
final only in cases where the penalty imposed is suspension for not more than
thirty (30) days or fine in an amount not exceeding thirty (30) days
salary.  In the case, therefore, of petitioner
who had been made to suffer the penalty of suspension for one (1) year, such
penalty should not have been implemented without the appeal to the Civil
Service Commission for proper review.

Notably, paragraph (a) of the above Section explicitly provides
that the Commission shall decide upon appeal all administrative disciplinary
cases involving the imposition of a penalty of suspension for more than 30
days, or fine in an amount exceeding 30 days salary.  Clearly, the enforcement of the penalty imposed
upon petitioner under the resolution of the Secretary of the Department of
Transportation and Communications was premature.

From the very start, the basis upon which this case was
investigated had been defective and irregular. 
For, the letter-complaint of Fructuoso Arroyo
was not verified and yet, the name was haphazardly made the basis of the
informal inquiry.  It should be stressed
that par. (a) of Sec. 38 mandates that administrative
proceedings may be commenced against an employee by the head of the department
or office of equivalent rank or upon sworn written complaint
of any other person.  It should also be
noted that under paragraph (b) of said Section, a respondent is given the
option to elect a formal investigation of the charge against him if his answer
is not found satisfactory.  In the case
of petitioner, it appears that when her answer to the unverified complaint was
found unsatisfactory, she was never given a chance to decide whether or not to
submit herself to a formal investigation.

The Memorandum of Telecom Investigator Calapano
to the Regional Director is merely recommendatory since it was only the outcome
of a fact finding investigation based on the unverified complaint.  Note that the informal investigation was only
an inquiry into the alleged dishonest acts of petitioner in which case, the
Memorandum could not be made as the basis for any final resolution of the
case.  The legal and proper procedure
should have been for the Regional Director of Region V, the alter ego of the
department secretary  to initiate the formal complaint on the
basis of the results of the inquiry of the Telecom Investigator.  Instead of observing the mandatory rules on
formal investigations as prescribed by PD No. 807, the DOTC Secretary cut
corners and apparently railroaded this case by rendering the assailed
resolution.

Even the Telecom Investigator did not know what he was
doing.  He exceeded his authority by
imposing in the Memorandum a penalty in the form of a warning to
petitioner.  His job was limited to an
inquiry into the facts and a determination on whether or not a prima facie case
existed.  His findings were merely
preparatory to the filing of the necessary formal administrative case by the
Regional Director.

It should be noted with alarm that the Telecom Director who was
supposed to review the findings of the Telecom Investigator merely affixed his
approval within the Memorandum (p. 7 of Memorandum), thus obviously indicating
that he never reviewed the merits of the case.

It appears highly irregular that Asst. Secretary Sibal of the DOTC, in his letter dated August 2, 1989 to Chairman Villaluz
of the Administrative Action Board, informed the latter that his Office did not
file any administrative complaint against petitioner nor had it filed a formal
charge against her for whatever administrative offense.  Note that even with this letter,
Chairman Villaluz proceeded to order the hearing of
this case.  This is a
clear indication that for lack of coordination among the DOTC authorities and
the Regional Office, the mandatory requirements of due process to which
petitioner was entitled were irreverently ignored.

Thus, in the case of Jose Rizal Colege v. National Labor Relations Commission (G.R. No.
65482, December 1, 1987) this Court reiterated the “cardinal primary”
requirements of due process in administrative proceedings and these 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, and
substantial evidence means such evidence as a reasonable mind must accept as
adequate to support a conclusion; (5) the decision must be
based 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 view of a
subordinate; (7) the board or body should in all controversial
questions, render its decision in such manner that the parties to the
proceeding can know the various issues involved, and the reason for the
decision rendered.  (Underlining
supplied)

Evidently, respondents denied petitioner her right to a formal and full-blown administrative proceedings which
she never had.

WHEREFORE, the Resolution dated September 30, 1988 of the Secretary of the
Department of Transportation and Communications and the proceedings before the
Administrative Action Board are hereby declared NULL and VOID.  The Secretary of the DOTC is hereby directed
to restore to petitioner’s record of service the period which she served under
suspension and to delete from her personnel file the period within which she
was disqualified for promotion.

SO ORDERED.

Melencio-Herrera, (Chairman), and Regalado, JJ., concur.

Padilla, J., no part.

Sarmiento, J., on leave.